Attack of the Killer Gadflies (Part II)
The 1992 bond election passed by a 2-1 margin. The TEA audit had found no illegality in the use of the '85 bond funds.
But Finlan and Venable were just getting started. "We had to establish a sense of paranoia in government," explains Finlan. "They had to be afraid of us." But it was Finlan and Venable who seemed paranoid. They dismissed the TEA audit as a collusive "whitewash."
"At some point, you have to go on to the next issue," says Sandy Kress. "But they kept pushing the same '85 bond buttons and forcing us to retrace our steps." The audit did validate some of their complaints; auditors were unable to trace $5 million in bond interest earnings. Yet the study found little evidence that the district had misapplied its bond funds.
After the auditor's findings were filed with the court, Finlan and Venable dropped their original bond case. They told the press they wanted to concentrate on their civil rights case, that they would prove their old bond allegations in this new case. "It became a bigger issue than the bond money," recalls Venable. "For the trustees to manipulate the political process by suing [their] critics was an attack on the American system of government."
Judge Marshall seemed to have lost patience with their tactics, at one point fining the pair $2,500 for frivolous discovery motions. He later dropped the fine against Finlan. Still Eichelbaum doggedly pursued Venable, convincing the judge to issue an arrest warrant because Venable had failed to pay the fine. "Eichelbaum wanted his pound of flesh," recalls Marshall. "They had been jabbing him for months, and he wanted to get even."
On February 6, 1993, the pair invited the press to witness Venable's arrest. They convinced two sheriff's deputies to take Venable into custody, handcuff him, then escort him into Marshall's court with TV cameras rolling. The judge never looked up from the bench. He listened to a brief explanation from Venable's lawyer about denial of due process. Then he cut Venable loose.
Eichelbaum claims the tactics he employed were "nothing personal" and "strictly business." Yet a framed copy of the arrest warrant hangs like a trophy on his office wall.
On March 12, Eichelbaum once again tried to have Venable held in contempt, demanding that he pay his fine. After the judge refused to take any further action, Leonard Schwartz, Eichelbaum's law partner, approached Venable outside the courtroom, placed his arm around him, and asked: "Where is the $2,500?"
According to Brett Shipp, who captured the incident on camera, Venable told Schwartz to "stay out of my face." But as Schwartz turned to leave, Venable brushed the back of his jacket with his three fingers. Before the day's end, Schwartz had filed a civil case against Venable, asking for $10,500 in damages for the "offensive touching."
Spiraling the absurd conflict further, Venable counter-sued for assault. Finlan joined in, filing stacks of pleadings alleging old causes of action and conspiracies. Schwartz must have had enough. He eventually dropped his suit. "You hit me and I hit back hard," explains Finlan. "No one respects you if you don't."
The two sides kept taking ludicrous swipes at each other--mostly in purple court pleadings. "Dirty is the name of the game for Eichelbaum," Finlan wrote. He accused Eichelbaum of a "vomitus moral and ethical code of conduct" and repeatedly urged the court to disqualify Eichelbaum from the case: "Such a sociopathic practice of law should have no place in American Jurisprudence."
Eichelbaum, in turn, alleged that he had become the object of Finlan's "obsessive vengeance," the "fatal attraction of Finlan's poisonous pen." He urged the court not to allow Finlan to hide behind his pro se status, to "subject him to the highest sanctions permitted by law."
On May 24, 1993, Judge Marshall finally sorted through all the sidebar trash and ruled on the district's claim of tortious interference and defamation. The judge dismissed the case. "It was clear DISD was repressing their First Amendment rights," reflects Marshall.
Finlan and Venable wasted little time in celebration. Getting back to plotting strategy for their civil-rights case, they became fixated with getting their hands on the tape of "a secret meeting" they claimed would show how the trustees and Eichelbaum had illegally schemed against them.
Eichelbaum denied that a secret meeting had ever taken place. "No evidence has been presented...to even suggest a secret meeting occurred," he declared in court documents. "...This is another red herring tactic by Finlan to create governmental mistrust. It also supports the contention that perhaps the court should order a psychological evaluation of Finlan since he seems to find 'secret meetings' and governmental coverups everywhere."
Eichelbaum must have objected to the word "secret," because the district later admitted in court papers that its trustees did meet with him in an executive session on September 24, 1992. The district refused to reveal whether the board had discussed suing the pair during the closed-door meeting. Finlan and Venable contended that any legal privilege of confidentiality was forfeited because the meeting itself was illegal.
The tape became the subject of its own hyperbolic war of wills. But the issue got buried under a sea of rulings and recusal motions, as the case hopscotched around the courthouse, transferred from Judge Marshall to Judge Skipworth-Hunt to Judge Moye.
Meanwhile, Finlan broadened his attack against DISD, for the first time questioning how the district was budgeting its 1992 bond funds. This proved to be a tactical blunder. Eichelbaum raced to the federal courthouse. He claimed Finlan and Venable were now interfering with the federal court's jurisdiction to supervise its desegregation bond projects.
Judge Sanders agreed. On November 12, 1993, he enjoined both Finlan and Venable "from proceeding with their current state court suit against DISD...and from initiating any future state court litigation that challenges the DISD's use of bond election funds." Since their civil-rights case was part of their bond case, they were prohibited from prosecuting it as well.
Dennis Eichelbaum had done his job. He had finally put a stop to Finlan and Venable--or so it seemed.
Finlan the homebuilder hadn't built a home since 1991. Venable the theology student hadn't attended class since 1991. But their government watchdog business remained a thriving--albeit unprofitable--concern.
Although thwarted by the DISD, they had developed a countywide network of concerned snitches, informants, and malcontents who enabled them to broaden their investigations well beyond the school district. A well-placed gripe from either "Blues Brother," as they called themselves, was often enough to get an insensitive bureaucrat to reconsider his decision. "We are the wild card that was never supposed to exist," says Finlan. "We are judgment-proof, we have no costs...You can't work our attorneys to death--we have no attorneys....It doesn't mean we win. We just prevent the government from winning because they can't overpower us."
Amazingly, they had only spent a few thousand dollars on the DISD litigation. They kept costs down by joining as many claims in as few lawsuits as possible. And they convinced their closest ally, Roy Honeycutt, to become their personal process server. During school board meetings, he would serve legal papers on one trustee after another--all for the price of a beer and some barbecue.
If Finlan and Venable weren't spending their free time in the law library, they were phoning each other from their home offices--complete with computers, fax machines, and boxes of overflowing files. They bounced their ideas and tactics off each other until they reached some kind of consensus.
Finlan was quicker on the draw than Venable, ready to rush into court with a new legal theory while Venable was still pondering its consequences. "If we want to accomplish something bizarre or out of the ordinary," says Venable, "Finlan will do it." Finlan once filed a motion for the U.S. district clerk to produce all photos of Judge Barefoot Sanders and school board president Sandy Kress at any "social engagements." "No attorney in his right mind is going to do something like that," says Venable. "But we wanted to get under the judge's skin so he would take some action on our case."
Because of the combative nature of their work, Finlan and Venable grew isolated, often succumbing to a siege mentality. "You'd be surprised how many people don't want to associate with us because they are afraid we are trouble," says Venable. When their wives would grow weary, wondering when it was all going to end, they turned to each other for support. "Rick and I need each other," says Venable. "It's sort of an emotional marriage. If I had to do this alone, I would have given up years ago."
Finlan is better-suited to weather controversy. His wife makes a good living as a surgical nurse. He still dabbles in real estate. And his family lives comfortably in the two-story Tudor cottage he built for them in East Dallas. Crusty and guarded, he doesn't let the stress of litigation get to him.
Venable is more serious, more sanctimonious, more impoverished. "If I didn't have this," he says. "I would have nowhere to go with my theology."
Over time, as they became lay experts in the rules of law and legal procedure, Finlan and Venable learned well how to manipulate the system. How they wielded that power left them open to the same kinds of criticisms they were making of those in government.
Early in their watchdog days, Finlan and Venable were accused of targeting primarily black officials--an allegation they both denied. "In this game of checkers," says Finlan, "everybody is fair game. Blacks, whites, North Dallas Republicans. I just have to catch them doing something dirty."
Although they both are devout conservatives (Finlan owns a Doberman named Newt), they claim no political agenda. They seek to limit government, as much by instilling a sense of accountability-through-paranoia as by actually winning in court. "There is a pattern to their cases and that pattern is money," says Judge John Marshall. "Call it good government, open government, whatever--they feel government has no business spending taxpayer dollars without being accountable for them."
Finlan and Venable had long set their sights on County Commissioner John Wiley Price, angered by the city's timidity in dealing with his "Warriors" protests outside the northeast police substation. Price told the press that if he ever received an open records request from Finlan and Venable, he would flush it down the toilet. "That was like waving red meat in front of a tiger," says Venable. "We decided to check out his brag."
In December 1993, they filed an open records request asking Price to produce, among other things, his backup campaign documents--checkbooks, deposits, bank statements. When Price refused, Finlan and Venable filed suit. During discovery, the pair came across at least five checks which they say proved Price was taking illegal campaign contributions from corporations. In April 1994, Venable lodged a criminal complaint against him. Price, who would later be cleared by a grand jury, claimed Venable was just "campaigning on me."
Weeks earlier, Venable had announced his second attempt to win a seat on the school board. This time he made it into a run-off against Lynda McDow, a political unknown from Seagoville. Venable was still perceived as the enemy--far too obstructionist to work within a group. McDow accused Venable of tapping her phone, of being "an overgrown child." She beat him in the June runoff with 53 percent of the vote. Three weeks later, Venable sued McDow for violating campaign finance laws.
Board president Kress believes the motives of Finlan and Venable have grown increasingly suspect. "Their early criticism of the '85 bond funds did contribute to improving the way we do business," he says. "...But now they are looking for triggers that relate to personalities, that relate to anger, that relate to revenge."
Venable admits that "there is an element of retaliation" to their methods. Nowhere is this more evident than in the case of school trustee Bill Keever.
In September 1994, Venable was standing in the hallway of the administration building when Keever yelled: "Hey Venable, go get a job!" It was a comment he would come to regret.
"It hacked me off for a public official to behave like that, unprovoked." says Venable. "He was a cocky little thing." But it was Finlan who wouldn't let it rest. "We don't let people do that," Finlan told his partner. "The least we can do is take a look at his records."
The two had no reason to suspect Keever, yet made an open records request for all campaign bank records backing up the election reports he filed in 1993. They steered Channel 4's Lucretia Cuen onto the story, hoping to smoke out more facts for their lawsuit. By the time it was all over, Keever tearfully admitted that he had failed to report over $4,300 in campaign expenditures, and claimed he didn't know he was supposed to report another $12,000.
Based on Cuen's coverage, the DA launched an investigation to determine whether Keever had violated any criminal statutes. Keever claimed he had no sinister motive in failing to report the expenditures, that he was just mistaken or misled. A grand jury refused to indict, but the incident took a heavy toll. "It was difficult on myself and my family," Keever told The Dallas Morning News. "It cost me an enormous amount of money to get my name cleared."
"We were having so much fun with Keever," says Finlan, "we decided to look at everybody." Finlan wanted to go after all the trustees' campaign records.
But Venable, given to bouts of depression, was at a low emotional state. His wife had been supporting him for four years; his family had sacrificed so much for him already. He felt frustrated by Judge Sanders' injunction, and Eichelbaum was still attacking him in court.
Venable had a history of sending faxes to Eichelbaum, little "messages of inspiration," as Finlan called them. But Eichelbaum now accused Venable of "stalking him by fax"--sending threatening faxes to his home. On January 13, 1995, Eichelbaum asked U.S. Magistrate John Tolle for a protective order against Venable--and sought to have Venable ordered to submit to a mental examination as well.
Venable denied sending the anonymous faxes, one of which read, "Does your wife know about you and ____?" But Eichelbaum produced a phone log from his home computer which he claimed proved that the faxes had been generated from Venable's machine. After a heated three-hour hearing, Judge Tolle denied all relief. He did, however, admonish Eichelbaum and Venable to "stop acting like two damn kids."
After collaborating in bruising so many others, Venable felt he had been put through "an emotional wringer." It took an upcoming battle with the city council over the new arena to buoy his spirits and strengthen his resolve.
For several months, Mavericks owner Don Carter and Dallas Stars owner Norm Green had been threatening to move their teams to the suburbs unless a new $145 million arena was built to replace Reunion. As a public debate raged over the issue, five members of the city council, selected to serve as an ad hoc committee, began negotiating with Carter about a new downtown arena. All meetings between the parties were in executive session. Closed to the public. Secret.
Finlan and Venable knew from their DISD war that if third parties were present at executive sessions, the privilege of confidentiality was waived and the public could not be shut out. Finlan claimed he wasn't trying to "queer the arena deal," but threatened to sue if the public was kept out of the process. Says Venable: "If the city thinks the arena is such a benefit, let them stick it on the ballot and let the people decide."
On May 1, 1995, Finlan and Venable stood before federal Judge Joe Kendall, cross-examining city council members, the city manager, the city attorney. They tried a crisp no-nonsense case, asking for an injunction to stop these "secret meetings." "We have the worst thing that could have gone wrong with our government," Finlan argued. "We have got elected officials negotiating with private corporations on how to spend public money."
Judge Kendall couldn't have agreed more. In a sharply worded 25-page opinion, he ruled that the city had flagrantly violated the Texas Open Meetings Act--and barred the council from meeting secretly with third parties. "...The public business should be conducted in public," he wrote.
After five years of demanding respect, Finlan and Venable had finally earned it by producing results. They had fought City Hall and won, behaved like a couple of common men in it for the common good. Says Venable: "It was the best work we ever did."
Finlan and Venable never would give up on the DISD.
Still pursuing their 1992 civil rights suit, they devised a strategy to get around the federal injunction. They sued each of the board members as individuals, rather than trustees, alleging that filing a $283 million lawsuit against Venable and Finlan was outside the school board's authority.
The case finally landed in front of State District Judge Bill Rhea. Finlan and Venable felt ready for trial--if only they could gain access to the infamous tape of the September 24, 1992 board meeting. As always, they claimed it was proof of the board's nefarious plot against them. Yet it seemed absurd that the trustees of a giant school system with a billion-dollar budget would be obsessed with a couple of minor irritants.
Before Judge Rhea ruled on the issue, the board began to talk settlement. Trustee Dan Peavy approached Venable, wanted to know what it would take to settle everything--a package deal.
Finlan and Venable were still riding the high of their recent win against the city. Convinced the district was running scared, they offered to settle for $1.6 million. This would end all pending bond suits, open-records violation claims, assault charges, and civil-rights cases. They also offered to cease "all political watchdog activities" against the district for three years.
On June 22, 1995, the board considered this offer in executive session. The trustees rejected it out of hand--and offered no counter. "It wasn't like, you pay us X and agree to abide by the open meetings law," says Sandy Kress. "It was pure extortion." A matter of greed, he says, not principle.
The board decided to resume the war. In the same executive session, the trustees removed Eichelbaum as lead counsel. Larry Friedman and Associates, an outside firm, would take over the litigation. "We needed someone who could bring a more professional, detached perspective," says Kress.
But Friedman wasted no time in picking up where Eichelbaum left off. He blasted Finlan and Venable in the media, discussing with outrage the terms of their settlement offer. Though settlement negotiations are usually kept confidential, Friedman claimed it showed the pair's true motivation.
Venable grew depressed. He needed the money--even considered it his due. "I came home and told my wife the whole settlement was a sham. We both cried for at least an hour."
Finlan, on the other hand, became incensed. "This lawsuit (the civil-rights case) has nothing to do with watchdog stuff," he says. "This is Rick Finlan against a bunch of individuals who went out and tried to hurt him. In return, Finlan is going to try and hurt you."
Finlan figured that if he could just get his hands on that September 24, 1992 tape--presumably showing the district's conspiracy against him and Venable--"the case would be virtually over." On July 19, 1995, he went to the courthouse and searched the court's file for the tape. He found it in an envelope, stapled and licked shut. There was no written order from the court sealing the tape, just a cover letter from Dennis Eichelbaum warning off all would-be listeners. Finlan opened the envelope, began to duplicate the tape and listen.
The tape reveals Eichelbaum briefing the board on several Finlan and Venable hearings, then asking the trustees: "The question is, are we ready to take action?" The rest of the recording made clear the answer: with a vengeance.
On the tape, Eichelbaum tells the board he has done research and believes Finlan and Venable have violated the law by tortiously interfering in the district's business relationship with Goldman Sachs. "It is our suggestion that we file a lawsuit and go after them."
Eichelbaum also recommends suing Venable's brother David, since the letter sent to Goldman Sachs came from David's fax machine. If all three men are sued, it might create a rift among them, he explains--"plus, he has assets."
Kress, an attorney himself, raises concerns about the district's prospects in such a lawsuit, given Constitutional protections for free speech. "What are the chances we can prevail against a citizen?..." he asks.
"...Odds of prevailing are better than 50 percent," says Eichelbaum. "Odds of getting money--no one is going to give DISD that much money....What it means to them is they can't get loans pending the lawsuit. Their credit line is shot....In the new lawsuit, we can put them in depositions and instead of them working and making money, they are going to be deposed on a daily basis."
Trustee Dan Peavy sounds angry. "...I think any way we can screw them is the best thing in the world, but the idea of going after the brother because they office in the same place....I don't think that is going to hold a lot of weight."
Kress later comes to Eichelbaum's defense. "...I think it is a good idea. I think crazy people who can keep being crazy will keep being crazy....I think putting them on the defensive, making them use their resources...bringing the brother in, you bet....Because these crazy people are not going to back off until the game changes...."
"...I'm for going out and getting Racehorse Haynes," Peavy chimes in. "That's how concerned I am about this thing...."
The group discusses the added bonus that a DISD lawsuit would discredit the attacks Finlan and Venable might make on the crucial bond program that was being submitted to Dallas voters.
"...Everybody knows we are about to go into a bond campaign," notes Kress. "...They are going to be attacking us big time between now and December 5...."
"I think if we sue now," says Eichelbaum, "then anything they come out with later, it's because we sued them. That's why they are making these comments in the press. That's why they are doing these things--it's because we sued them..."
Although no formal vote was taken, board president Rene Castilla tells Eichelbaum: "You have the consent of the board to proceed with your direction to file the lawsuit."
"All power to the people," chimes Kathlyn Gilliam. The others laugh.
After listening to the tape, Finlan felt vindicated. "It's like the old guy who goes around the street mumbling, 'It's all a big conspiracy' and then finally everyone else says, you know, that son of a bitch was right."
Finlan, of course, didn't keep the tape to himself. He made copies for any reporter who was willing to listen.
Judge Rhea was willing to listen as well. He also planned to listen to a second tape--the June 22, 1995 executive session, which Finlan and Venable claimed would reveal the board's further complicity.
But when the court ordered its in-camera inspection, the June 22 tape was mysteriously blank. Board secretary Robert Johnston told the judge he had mistakenly failed to push the right buttons when the meeting began.
Finlan and Venable hollered cover-up, insisted that the tape had been erased in Nixonesque fashion. The DISD board responded to the embarrassing disclosure of its closed-door remarks by voting last month to end the time-honored practice of recording executive sessions.
Finlan and Venable may yet have a judgment day in court. Their civil-rights case is set for trial in early 1996.
But even if they don't get a dime, Citizens Finlan and Venable have accomplished much in their relentless march to be heard. Although most of their litigation has a timeless quality--still pending after all these years--they have pried open the doors of local government, forced the school district to be more accountable to its taxpayers, trained the local media to become better government watchdogs, and rattled the cages of a city far too complacent for its own public good. Although their tactics are at times petty and Machiavellian, the body politic is more honest for the encounter.
If a jury does award them damages, Venable plans, oddly enough, to use the money to go to law school. He wants to do for others what he's done for himself. Finlan says he might give up the watchdog business for a while, "maybe buy a place and slice barbecue."
Of course, the irony doesn't escape them: their future may be bankrolled at taxpayers' expense.
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