On November 20, 2008 St. Olaf College's attorney, Michael Cunningham of Gray Plant Mooty, filed a Memorandum of Law with the Rice County District Court in response to SaveWCAL's Petition To Redress Breach Of Trust. The documents are available for download at the end of this posting.
It's important to note the marked difference in the tone of MPR's Memorandum compared to St. Olaf College's.
St. Olaf's document is remarkable in the language it uses in its attacks on SaveWCAL vs. MPR's measured tones.
However, we're not surprised. It's obvious that Cunningham is, to put it mildly, very angry. But we can't blame him. The client that he and his firm have represented for decades (St. Olaf College) went and did something incredibly stupid — and illegal — apparently without involving his firm and his services until well after the fact. Now he has been placed in the position of trying to clean up a really big mess.
Unfortunately, Cunningham's anger should more appropriately be channeled at his client who apparently did not involve him or his firm in arguably one of the largest sales transactions it ever undertook.
The St. Olaf Memorandum conveniently leaves out a number of facts and boils down to four expected refrains:
- SaveWCAL lacks standing
- SaveWCAL's Petition is barred by the equitable doctrine of laches.
- There is no "WCAL Charitable Trust"
- St. Olaf did nothing wrong
St. Olaf, like MPR, attempts to show that SaveWCAL does not have the legal standing to bring our Petition To Redress Breach of Trust. St. Olaf has consistently tried to prevent SaveWCAL's participation in WCAL trust issues. Their efforts have failed thus far.
Even if St. Olaf and MPR could silence SaveWCAL, they could not prevent the Court from exercising its statutory role as the guardian of the beneficiaries of a charitable trust.
The "doctrine of laches" will be addressed in SaveWCAL's upcoming Memorandum, due to the court on December 9.
Point #3 became St. Olaf's claim only AFTER they realized that their Original Petition, where St. Olaf claimed that there IS a "WCAL Charitable Trust" to the court, was going to get them a heap of problems. WCAL is a "charitable trust" for St. Olaf only when it's convenient, helpful and useful for St. Olaf to call it that. But that's not how the law works.
And point #4 is amply disproved by simply reading the mountains of factual evidence that has been gathered on this web site. St. Olaf should note that even MPR is using our evidence! We must be providing a good service…
Finally, we note tht St. Olaf does not include any additional evidence to contradict Judge Wolf's June 2008 Court Order. We further note that, if St. Olaf actually had any such evidence, they would surely have submitted it to Judge Wolf so that his Court Order would have been more favorable to St. Olaf. They had no such evidence to submit, which is why the Judge ruled the way he did.
The documents submitted by St. Olaf College and available here for download include:
- Letter Memorandum In Support Of Motion To Dismiss [PDF, 28 pages]
- Letter Memorandum Exhibits 1-3 [PDF, 17 pages]
- Letter Memorandum Exhibits 4 (A copy of the FCC Decision to Deny) [PDF, 43 pages]
- Letter Memorandum Exhibits 5 [PDF, 13 pages]
- Affidavit of Alan Norton [PDF, 2 pages]
- Affidavit of Michael Cunningham [PDF, 2 pages]
{ 8 comments… read them below or add one }
I couldn't determine the exact reason, but the copy I downloaded of the St. Olaf Memorandum of Law wouldn't open, to quote the error message "because it is an unrecognized file type or the file is corrupted." Just thought you should know. I tried downloading twice, with the same result.
Somehow a corrupted file (which I suspect is the more likely reason) seems most appropriate for a St. Olaf College document.
SaveWCAL responds:
Thanks for letting us know. We're looking into this.
I was able to open the file without too much difficulty (dial-up is so darn slow) and printed it out. What a jerk! How can St. Olaf say these things with a straight face? Does Judge Wolf's words mean nothing to them?
St. Olaf makes a very interesting argument regarding their "right" to repurpose contributed funds. About 20 years ago I made a large contribution to the capital campaign for an addition to Rolvaag Memorial Library. I hope the contribution was used for that purpose, but since it was not accompanied by the legal documents restricting the contribution that St. Olaf apparently considers necessary, they would have been entitled, according to them, to use these funds for the President's mansion, a Regents' planning retreat in Tahiti, or any other purpose which they could rationalize as "supporting the educational purpose of the College."
The campaign for the library addition was specifically identified by St. Olaf as being for that purpose, which I regarded at the time as being sufficient guarantee of the College's intentions. However, all of the fundraising for WCAL was conducted in the same way. Since the college is now arguing that such promises do not constitute a restriction on the funds, I can no longer have any confidence that funds solicited by St. Olaf will be used for the purpose identified in the solicitation, unless accompanied by very solid legal documentation (with copies in a safe place inaccessible to college administrators.) That does make decisions about future solicitations from St. Olaf very easy.
In addition, I must say I resent the way St. Olaf is using its position as an ELCA institution in defense of these dubious ethics. I am a member of the governing board of another ELCA institution; we are currently conducting a major capital campaign, and have discussed various issues relating to acceptable uses of funds raised thereby. I believe arguments such as those advanced by St. Olaf in this case would have been soundly rejected by our board as ethically bankrupt.
I just reading through the St. Olaf statement and got to page 16, and had to take a break, along the way I was making notes.
Let's begin:
Introduction: "..savewcal manipulation of the legal system…"
" …as a way for a few individuals to relieve.."
"exemplary"
"increasing tenuous"
"…because St.Olaf owned the equipment…" (that's a challenge statement. Important use of St. Olaf, versus WCAL)
"St.Olaf has done nothing wrong here…" page 3
"…small group of disappointed and unreasonable individuals,.." page 3 (another challenge)
"…non-profit organization." page 4 (Important use of non-profit organization wording: versus the core issue of WCAL. They are trying to make the two one unit!)
"…sufficient stake in a judicial controversy to seek relief from a court." (another challenge) page 5
"…charitable trust theory." (another challenge) page 6 It's a theory not law.
"…The Attorney General rejected SAVEWCAL's charitable trust argument and correctly determined that St. Olaf as a non-profit." page 6, (another challenge, which Ms. Swanson addressed last summer. We are talking about WCAL here, NOT St. Olaf, the college…watch the switch in language being used here.)
"…have not persuaded a whole series of decision makers.." page 7.. (another challenge, and low blow)
"…appropriately dismissed or denied by the Attorney General, the FCC…" page 7. Which AG? Hatch or Swanson? AND..dismissed or denied. Which one, St. Olaf?
"….it must be stopped…" page 7. Put your money where your attorneys are and sit down at a table to talk.
"…Trust Standing Header"
…Attorney General elects not to participate in an action to enforce a charitable trust …" page 7. Very interesting statement.
…"Attorney General has been involved…Further even if the Attorney General had not become involved, Savewcal would not have Standing…" page 12. Very interesting and open ended statement.
… Equitable Doctrine of Laches.. "…delay in asserting a known (claimed right) resulting in prejudice to others.." page 12. Thanks for opening the door on this line of thinking.
This is just the first 12 or so pages of double speak. I need a coffee break and I will return to the rest.
Okay, I finished my coffee, let's continue examing this document.
"…During the course of the Prior Proceeding St Olaf repeatedly noted…. " page 16 (What prior proceeding? lack of transfer here.)
"…SAVEWCAL's Charitable Trust Theory were not properly (placed) before the court… The Court agreed. In on Order dated May 17, 2007, the court denied a motion to compel St Olaf to produce document(s)related to the history of the radio station…such documents were not material to the issues before the court…" page 16.The matter before the court was/were the restricted gifts , and the issue of the SALE of WCAL was a byproduct, which came out of that. The two are joined at the hip, and will continue to be so, until the ISSUE of the SALE is dealt with. I sincerely DOUBT whether St. Olaf can produce statements about the RADIO STATION (note the wording here) because the funds attributed to WCAL were NOT broken out in the 990 statements filed by St. Olaf that I could see. Hence forth St. Olaf's line of defense that WCAL was NOT a separate matter because they failed to BREAK OUT contributions to WCAL, on their IRS statements. (GEE, I wonder how donors to WCAL made out their checks!!)
"… it was an asset of St. Olaf…" page 19.
Was it an asset purely because St. Olaf failed to create a separate account for contributions to WCAL? Again, how did WCAL MEMBERS make out their checks?
"…SAVEWCAL had concocted its legal fiction of the WCAL Charitable Trust before the sale of WCAL took place, yet SAVEWCAL waited four years to petition this court…" page 18.
See SAVEWCAL attorney, October 2004, on this one.
"…The proper time for SAVEWCAL to assert its (legal) challenge to the sale of WCAL…was before the sale closed…" page 18. See SAVEWCAL attorney, October 2004, on this one.
"…IV…It is indisputed that there has never been a separate legal entity known as The WCAL Charitable Trust alleged in SAVEWCAL's Petition does not exist; therefore, the petition should be dismissed. page 19…….. See SAVEWCAL attorney on the creation of a charitable trust on this one.
"…The name of The WCAL Charitable Trust was coined by SAVEWCAL after St. Olaf decided to sell its assets used to operate the radio station to MPR…" page 19. Terrible work here. "The name of The WCAL Charitable Trust", they are grabbing at straws. "After St. Olaf, decided to sell its assets, used to operate." It was only their asset because THEY could not break out funds on their 990 that I could see. WCAL MEMBERS knew what they were donating. Note the use of words assets, operate, radio station, and MPR. What is MPR anyone? Also note, A MEMBER …I am a MEMBER OF WCAL…not St. Olaf, but WCAL. That constitutes a separation of WCAL FROM St. Olaf.
"…nothing in the trio of cases analyzed above suggests that a large number of independent and distinct charitable gifts made over time by many donors to support the same activity of the organization…must be aggregated in a single trust that constitutes a separate legal entity…" page 21. Note the word organization. No, WCAL donors GAVE to WCAL to be MEMBERS of THAT organization, NOT St. Olaf. And as A MEMBER I received certain benefits.
"…when a court infers a …intention to create…" page 22 How were the checks made out to WCAL? And as a MEMBER, of WCAL I become a select group of individuals promoting classical music. It's in WCAL's own advertising.
"…The WCAL Charitable Trust…" page 22 Fixed on wording.
"…donor imposed restriction on an institutional fund.." page 23. Again, St. Olaf, because it did not break out WCAL on their 990 as a serious oversight, they are using the "organizational"
line of defense.
"…not normally second guess" …"the business decisions of nonprofit corporations such as St. Olaf's decision to sell WCAL's assets to MPR"…page 23. Okay, now we are a CORPORATION, not an organization, as used before, and WCAL had assets, they we did not break out out on their books..(that I can see) but they did have what was it?..how many MEMBER DONORS
every pledge drive to WCAL? Oh, and who is this MPR? Has not been explained.
"…the Petition appears to assert that the value of that trust is now 12 million…" page 23.
See SAVEWCAL attorney on this one.
"…to the contrary the Court expressly recognized that the issue of the sale of WCAL was not before it. (Order June 10, 2008, at 4)…" page 24. No kidding St. Olaf, stop trying to confuse the facts.
"….the courts only comment about a trust" "…was her lack of involvement in the WCAL sale.." (Order June 10, 2008 at 5) page 24 Try pages 6 and 12, on this one regarding Attorney
Generals.
"…use of endowments and similiar funds created exclusively with gifts to St. Olaf, to support WCAL…" page 24. Nice try, how were checks to WCAL made out? They were NOT gifts for St. Olaf, but exclusively (sorry using your own words here) for WCAL. The MEMBERS supported WCAL not St. Olaf.
"…Here the decision to close the radio station and sell the assets St Olaf used to operate it was made by the St.Olaf Board of Regents…" page 26. Note the words, close, radio station, sell the assets, operate. It's not WCAL, it's a radio station, VERY impersonal, it's not a radio station with members, it's an ASSET of St.Olaf. It was a cold, cut and dried decision. The reference to The Board of Regents, is a side track issue, they hope.
…" non profit corporations.." page 26. Once again notice the word changes.
"….In contrast, there is no requirement that a nonprofit corporation notify…before a planned sale of a collection of assets that does not comprise substantially all of their organizations assets…" page 26. Again we have gone from an corporation to an organization.. Again we are talking about a COLLECTION of ASSETS..
WCAL was a MEMBER support radio station. The evidence they need to support the separateness of WCAL from St. Olaf, is and was, right in their advertising.
It was a good read, St. Olaf………..
Among all the good things we can be thankful for this Thanksgiving Week, I want to keenly express my gratitude here that I had not yet carried out planned intentions for legacy contributions to WCAL. And further – that overall, observing this matter in detail here and the apparent lack of respect for Charitable Trust Law even within the MN Attorney General's office has now created a deep and certainly enduring change of heart for me to the very concept of "Charitable Trusts". Thus, I will from this point forward also personally and vigorously dissuade all who come to my attention on Charitable Trusts – by reviewing these misdeeds and pointing out the future potential for sham and scam present in the administration of any Charitable Trusts – for whatever purposes in Minnesota. For this, among other fine gifts, I am truly thankful! Happy Thanksgiving!
"And the band played on…" My, oh my – what a good read this site overall is! For some reason – I am reminded of the good, unsinkable ship, The Titanic… In any event, this collection of files, facts, and details on all proceedings will be a treasure for future students of proper management of not only matters of "public trust" but – more important than the legalese, perhaps: the Public Relations. Where are the lifeboats for the PR Crew?
As a former benefactor of WCAL, I have yet to see among the multitude of issues heretofore addressed that of the legal costs we benefactors had to incur to have WCAL named in our wills and then subsequently removed after the sale. The initial redrafting of my will to name WCAL as a primary beneficiary cost me $1,000; the cost of the codicil to remove and replace WCAL was $750.00. When added to the stream of contributions I made to WCAL over the course of 23 years, I estimate that St. Olaf & MPR owe me approximately $20,000. That's the amount I won't be contributing to MPR to recoup my losses.