Spiritual Instruction for Those Called to Restore Israel
Book Review Appendices
IF? The End of a Messianic Lie
by Uriel ben-Mordechai (aka Uri Marcus)
Contents
Appendix A: Messianic ministry upheavals and confusion: correcting fiction with fact
Fiction 1: Triple resignation from NTCF-Israel because of the "deity" issue, 2003
Fiction 2: The conspiracy to take over NCC, 2003
Fiction 3: The conspiracy to seize assets belonging to the author, 2004
Fiction 4: Restorers of Zion founded as a doctrinal response to the author, 2004
Fiction 5: "Chut Hamshulash" inherited the acronym and continues the work of NTCF, 2009
Appendix B: "Trinity on Trial" (IF, Chapter 9) compared with court transcripts and testimony (may/2006)
Fiction 1: The directed verdict was a plot to deny the author justice in court
Fiction 2: The judge showed bias in rejecting testimony from author's expert witness
Fiction 3: NCC defamed the author by publishing the IRS audit results
Fiction 4: The defendants published falsehoods about the author in NCC newsletters
Fiction 5: The lawsuit was necessary to defend Jewish faith against Christian bias
Fiction 6: The judge delivered his verdict with an anti-Semitic message
Fiction 7: All attempts by the author to reconcile in mediation were rejected by defendants
Fiction 8: The trial was lost due to religious bias on the part of the judge
Fiction 9: The judge deprived the author of a fair trial by dismissing the jury
Fiction 10: The appeal was lost due to the "incompetence" of the author's attorney
Appendix C: Primary-Source Documents, tracing the saga described in IF
Source 1: Letter of concern about IRS obligations from NCC board member to the author, feb/2003*
Source 2: The author's response to the above letter, feb/2003*
Source 3: Letter to Israeli mediators from NCC attorney, history of NCC-NTCF dispute, oct/2003*
Source 4: Messianic mediation (Uri Marcus/NTCF vs. Hannah Weiss/Restorers of Zion), summary and results, mar/2004*
Source 5: IRS audit result notification to NCC ("the IRS letter"), aug/2005*
Source 6: IRS audit result notification, addendum ("the IRS letter"), aug/2005*
Source 7: Court transcript, final day of author's trial, 17/may/2006
Source 8: Orderly explanation of the charges in the lawsuit, may/2006
Source 9: Press release by defense attorney, may/2006
Source 10: Trial Court decision awarding judgment to defendants, 22/aug/2006
Source 11: Newsletter from the author, soliciting donations for “NTCF Appeal Fund”, aug/2006
Source 12: Appeal Court decision on the author's appeal, apr/2008
Source 13: Arizona Supreme Court decision on the author's second appeal, oct/2008
Source 14: Public letter from the author announcing his resignation from NTCF, winter/2008-09
Source 15: Newsletter from NTCF reporting clashes with the author, jan-feb/2010
Source 16: “Open Letter” from NRF, giving a different version of the clashes, may/2010
Source 17: Final letter from NTCF, announcing closure, dec/2010
Source 18: Newsletter from Chut Hamshulash/NRF/Threefold-Cord/(New)NTCF, winter 2010-11, noting NTCF closure
Source 19: Personal responses from those accused of wrongdoing in IF *
*Third-party documents, used with permission. All other sources are either openly published material or my personal papers.
A "Tachlis" Question: How will any of this information help anyone?
Messianic ministry upheavals and confusion: correcting fiction with fact
Fiction 1: Dishonorable mention is made (p.451) of “the former members of the Nehemiah Fund Board in Israel, who had resigned early in 2003, because of [Uri’s] denial of the deity of Mashiach.” This statement is repeated by Uri later on that page: “…three ex-Israeli [sic] Board members, who had earlier resigned owing to my denial of the ‘deity’.”
Fact: I and two other NTCF Board members did indeed announce our resignations after a NTCF meeting in feb/2003. Actually, Uri had been demanding my resignation for a few weeks, which I had respectfully refused because I believed our differences could be resolved. (See below, Fiction 4)
In the end, the catalyst for my resignation was not doctrine but gross mismanagement of Fund matters and an unwillingness to address it. Specific examples brought up in that Board meeting included a letter from Uri in which he attempted to win a Fund procedural dispute between himself and a colleague, by threatening to report to the Israeli authorities that the dissenting board member was guilty of religious coercion. My resignation letter included a reminder of that threat, which already in 2003 used the same rhetoric later found in IF:
The most blatant example of Uri's potential to damage the Fund, as well as the Body of Messiah in Israel, was the letter he recently sent to [SB] which was read out loud to the Amuta:
-------- [transcribed from a tape of the Board meeting: SB is reading]
"[A third colleague’s] resignation does not require the approval of the Vaad [the Exec].... If you, however, at the upcoming General Board Meeting, will make any motion to have her resignation invalidated... I shall charge you [with various offenses against the Amuta by-laws], and I will have you removed for cause.
"If you try to fight me on this, I will appeal the matter to the Rasham [Israeli Registrar of Charities], and will take my chances before a Jewish judge, after I explain to him that our scuffles are because Christians like you are forcing Jews like me to bow the knee to their trinity.
"Afterwards, I'll take the matter before the Hebrew press, and let all Ahm Yisrael [the people of Israel] decide who shall control the Amuta - the Jews, or the Inquisitors dressed in Jewish costumes."SB, after reading: "The problem is, it's going to happen again....”
-------- [end of transcription; my letter continued]
…The entire Amuta sat silent through this whole presentation, listening to Uri's threat to denounce a brother and an Amuta colleague to the Israeli public as a "Christian" and "an Inquisitor in Jewish costume", knowing (as we all do) that persecution and damage to the Israeli Messianic community could result from such an act.
Uri broke this rather awkward silence by demanding my removal from the NTCF Executive because he needed "a time-out from those who are against me". When this motion carried, Uri withdrew a motion to also remove me from the Board, but I announced that I would no longer remain.
Two others also announced their resignations at that time, in response to the above chain of events. In their resignation letters, they also mentioned the deity issue as another reason for leaving. Those two letters are selectively quoted in the book IF (p.75-6), revealing only the theological objections. One was edited in a way that changed the writer’s meaning and tone (I still have the original). My resignation letter is completely omitted from the book, probably because it could not be used to support the author’s above fiction. It is available on request.
Fiction 2: Those who resigned in the above confrontation are implicated as conspirators to oust Uri from his post as NCC President and take control of the US-based organization. “These ex-Board members [from NTCF] banded together with NCC’s new Treasurer, and set out to convince the rest of NCC’s newest members to remove me as President, and take over the Corporation.” (p.451)
Fact: These accusations had been voiced - and refuted - several times before the publication of IF.
Uri’s removal stemmed from a problem with IRS compliance, which had been anticipated in the NCC Board in feb/2003, and Tom Mercer’s attempts to gain Uri’s cooperation had failed. (See Appendix C, Sources 1-2) A few weeks later, Uri called for a meeting on 2/mar/03 to vote on the removal of NCC Treasurer Sherri Wyner, saying that he was unable to work with her. This friction was already evident in the above-mentioned exchanges between Tom and Uri. To Uri’s chagrin, the voting results retained Sherri and replaced Uri with Tom as president. In IF (p.139), Uri identifies this vote as a reason for his lawsuits.
I never served on the board of Uri’s American corporation, so I was in no position to influence them. Uri himself testified in court (8/may transcript, p.11) that I was not present at the fateful meeting. Actually, I was not even aware of the resulting NCC shake-up for several weeks. But I was aware of upheaval in NCC prior to that point, because of the working relationship between NTCF and NCC Board members. This interaction was initially encouraged by Uri, who in 2002 brought the NCC Board from the U.S. to Israel to meet us (confirmed in IF, p.138). Within a year, NTCF policy was revised in the opposite direction, retroactively. Thus my established contact as a member of the NTCF Exec with the NCC Board became “misconduct”.
In any case, the above fiction was supposedly settled in a Messianic mediation meeting which Uri demanded in feb/2004. The NCC attorney at that time kindly sent a letter on my behalf to the Israeli mediators, explaining the entire history of the conflict in the NCC board, and the reasons behind Uri’s dismissal. (See Appendix C, Source 3) As a result, Uri’s charges against me were not taken seriously by the mediators. However, they absolved him of wrongdoing as well, and recommended that we just part ways and cease talking about our differences. (See Appendix C, Source 4)
After the mediation, Uri continued to voice the same charges. He repeated some of them in my hearing while testifying in the NCC trial, but evidence was never produced, either in court or in response to a private letter I sent him afterwards.
Fiction 3: In IF, Uri complains (p.451) that I and others “banded together to seize all of the assets of the [NCC] Corporation (again!), only this time they used them to fund and launch a new organization in Israel,” namely Restorers of Zion. This is an expansion of the above complaint.
Fact: Tom Mercer, as the new NCC president, was still concerned about IRS requirements (Appendix C, Source 1). After failing to secure cooperation on this issue from NTCF, he began seeking alternate Israeli partners willing to comply with NCC’s fiduciary obligations. I responded by submitting a proposal for a new organization with a structure which I hoped would avoid the mistakes I had seen in NTCF and also meet the IRS requirements for NCC.
The NCC board accepted the proposal and voted to help RZ with start-up costs and to forge a working partnership. Their decisions were within the mandate declared in their incorporation papers, as noted by the NCC attorney, but Uri presented this development to Israeli mediators in 2004 as wrongdoing (Compare Appendix C, Sources 3 and 4).
Oddly, two years after this confrontation, and five years before the publication of IF, Uri expressed a completely different opinion in court (court cross-exam transcript, 8/may, p.74-75):
Q. So if those funds [you raised during a trip for NCC] were sent to, for example, Restorers of Zion or some Messianic Jewish congregation in Israel, you would have no complaint?
A. I would have no complaint.
[…..]
Q. Okay. Tell me what wrongful act they [the NCC board] did, if you have documents apparently that show that money went to another organization in Israel.
A. Well, the directors were supposed to make the decision…. As I see it, [the decision was made illegally by] two officers and one director.
As it turned out, NCC’s decision to partner with RZ after Uri's exit actually protected the assets of NCC – and even rescued Uri himself from possible penalties. The IRS audit of NCC (concluded july/2005, 9 months before the NCC trial) noted “weaknesses in internal controls” under Uri’s management. The auditors specified documentation which NCC’s Israeli partner NTCF was failing to provide. However, the IRS auditor decided to forego penalties, because NCC had “essentially self-corrected” the deficiencies through their “new partner”. (See Appendix C, Sources 5 and 6)
This audit and its implications held a prominent place in the trial, and the judge’s concluding remarks included an exhortation to Uri to heed the lesson. (See Appendix B, Fiction 6)
Fiction 4: The Restorers of Zion ministry, writes the author of IF, was founded in order “to restore doctrinal integrity to the work the Nehemiah Fund had lost, in [my] eyes, after [I] resigned.” (p.451-2)
Fact: The preoccupation with "doctrinal integrity" was on Uri's side, and it caused problems with financial and management integrity in the Nehemiah Fund. I observed this within months of beginning my service there, and I unsuccessfully tried to address it. After emailing Uri numerous times asking about irregularities, the only response I received was a formal letter from the General Secretary (25/jan/03) which began:
With regret I am compelled to have to write this letter to you, owing to recent events, clashes and the adversarial role you have chosen to take up against me, which make it necessary for this administrative warning and directive to be communicated.
Serious charges of misconduct are now being brought against you, the likes of which I’ve not experienced for years from a partner in ministry. You will now be required to relate to theses charges seriously, or face the consequences of your actions.
Following were five pages detailing these “charges”. I replied by repeating the unanswered issues concerning Fund-related integrity. (My entire letter will be provided upon request.) Regarding the doctrinal issue, my objections focused on Uri’s expressed threats to refuse NTCF aid to those who rejected his doctrinal position. There was a specific dispute over a letter Uri had drafted to an Israeli pastor, which had been vetoed by the Exec; it was sent anyway, in the name of the NTCF Exec. I repeated my position in my reply:
I did – and still do – support your right to having personal doctrines and being able to express them as you feel the need…. But regardless of that, I have made it clear repeatedly that your doctrinal expressions need to be made in a context unrelated to the Fund, and I will repeat here what I have said you several times: I DO NOT and WILL NEVER support your right to use the Nehemiah Fund to pressure others to accept your personal doctrines.
[…..]
I cannot see the point of either you or us demanding that “deity” proponents accept you as a brother in good standing, while you have openly accused “trinity” proponents of practicing “idolatry” – a sin that the Scriptures say automatically excludes such people from the Kingdom of Heaven. This was in one of my letters to you that you have avoided answering until now, and it remains my conviction that you cannot have your cake and eat it too in this matter.
In the month following this exchange, Uri demanded my “voluntary resignation”; when he was not successful, he called a special NTCF Board meeting for 24/feb/03, to vote on my removal for the “misconduct” mentioned above.
Uri’s campaign for "doctrinal integrity" continued and has had a long-term negative impact on needy Israeli believers. According to an open letter by Uri's U.S. branch NRF (Appendix C, Source 16), this was a reason for the eventual break in 2010 between NTCF and NRF. The NTCF closed its doors soon afterward (Appendix C, Source17). Although this sequel would have fit well into the saga of "persecution" against the author of IF because of his doctrine, there is no hint of it anywhere in the book, which went to print about a year later.
Fiction 5: The Israeli organization headed by the author of IF, “Chut Hamshulash”, is presented as synonymous with NTCF (p. 137). Lacking any further explanation, and reinforced by linkage with Uri’s more recent name “Uriel”, this conflation gives the impression that other references in IF to NTCF (p.131,139) and “the Nehemiah Fund” (p.69-75,77-78, 131, 133-138, 438, 448-9, 451-2) are also this hybrid organization. Readers who visit the Chut website (p.531) receive additional messages that NTCF peacefully evolved into this new ministry.
Fact: Since the 1990s, the NTCF acronym has stood for Nehemiah Trustees Covenant Fund.
Sometime between feb/2009 and feb/2010, Uri left the original NTCF amid “disagreements” and “threats” (see Appendix C, Source 15) that closely resemble Uri’s clashes with NCC. Publications during that time (the year before the NRF-Chut-new-NTCF partnership was forged) show a controversy building over the NTCF acronym and logo. Two charities, who were not on friendly terms with each other, were simultaneously using it.
In may/2010, the Directors of Nehemiah Restoration Fund (NRF) went public in declaring rightful ownership of the NTCF acronym, logo and masthead, claiming this intellectual property for NRF and their replacement partner in Israel, “Chut Hamshulash”. ( See Appendix C, Source 16) The other NTCF, now with a new General Secretary, continued to use the IP just as they had done for the previous 10 years.
To resolve the admitted "confusion" thus created, NRF simply informed their supporters that they were renaming the original NTCF with the unexplained acronym “BNN”, hereafter using “NTCF” for the Chut ministry which “Uri began in September 2009”. They then faulted the Israeli ministry for its “insistence” on continuing to use the initials.
This traumatic break between Uri and the organization he headed for more than a decade would certainly have merited a place in the “Baseless Hatred” chapter. Instead, the many references to “Nehemiah Fund” over a period of 10 years provide a stage for the author’s image as a Jewish hero braving persecution. There is no hint given that this same charity was eventually classified by the author as yet another persecutor.
Only by visiting the Chut website (p.531) do readers of IF even begin to suspect that important pieces are missing from “the events described in this book that transpired over the past fifteen years” (p.495). For more on the organizational confusion in this merge, see the Review.
"Trinity on Trial" (IF, Chapter 9) compared with court transcripts and testimony
Fiction 1: The author quotes the judge's comment (last day trial transcript - see Appendix C, Source 7) that "it would be a waste of the Court's time and, more importantly the Jury's time to go through that which I should rule on," indicating his readiness to render a directed verdict. Uri asks (p.470), "Why [then] did the Trial judge wait until the 9th and final day of trial" to make this decision?
A few pages earlier, Uri suggests his own answer: By the end of his testimony (9/may/06), his legal opponents (which included the judge) “were now aware of the distinct possibility that the jury was likely to render a verdict in favor of the Plaintiff” (IF, p.467), and this is why Judge Ryan “began planning a strategy to remove the jury from service altogether…. Ryan would see to it that there wasn’t going to be a chance in Catholic Ireland [a slur against his family background] for us to prevail in his courtroom.”
Fact: The court’s decision to dismiss the jury and render a “directed verdict” is portrayed as a departure from justice, when in reality it is the judge’s legal duty when the prosecution “has not offered sufficient evidence”. (See the Free Legal Dictionary) This was probably why Uri’s side was given around 80 percent of the available time for testimony: the court kept the door open as long as possible for “sufficient evidence” to be presented. (See the court’s comment to that effect in Fiction 9 below)
The fact that the two higher courts agreed that the plaintiff had received a fair trial, and that the directed verdict was proper, went by without comment in IF.
As far as the jury’s inclination, speculation was unnecessary. The judge in his closing comments asked both attorneys if they would like to “discuss the case with the jury” ( Appendix C, Source 7, p.31-2), and both sides expressed an interest. For some reason, in the end only the Defense counsel talked to the jury. Here is a statement from acquitted defendant Tom Mercer about the result of that encounter:
I wish that Mr. Marcus’s lawyer had interviewed the jury. Then both he and Mr. Marcus would understand that they lost completely. The jury was ready to vote in our favor. We found this out after the trial when Judge Ryan visited the jury and thanked them and our attorney went to interview them. Some jury members even waved and smiled and wished us well on the way out of the courthouse.
One of the telling points is that one gentleman decided against Mr. Marcus in the first two days of the trial. I believe it may have hinged on the question my attorney was making to Marcus about a document that was in front of Marcus. Mr. Marcus had to answer yes or no about a topic related to the document. He refused even though my attorney asked two or three times in different format. At that point, Judge Ryan asked to see the document, quickly read it and answered for Mr. Marcus…. From this we learned that a judge can answer for a reluctant or refusing witness.*
Thereafter, it appears that the jury members each made their own choice against Mr. Marcus. In the end, only a couple were waiting for instructions but had already decided in our favor. Mr. Marcus would’ve lost the case regardless.
*Tom is referring to what happened on 4/may in Uri’s cross-examination testimony. These are my eyewitness notes of that incident:
(Defense attorney reads NCC articles of incorporation, which lists a mandate to give money to "Messianic believers in Israel", and no mention of having to give it to NTCF. He reads the NCC by-laws, signed by Uri, which list NCC’s purpose as "financial and spiritual support for Messianic believers in Israel"; again, no mention of NTCF.)
Defense: “Isn't this true?” (Uri remains silent.)
“Do the corporation documents specify anywhere that NCC money must go to NTCF? Does it say anywhere that NCC is a sister corporation of NTCF?”
Uri: “It's not a simple yes or no.”
Defense: “Why not?”(The judge orders Uri to answer the question, yes or no.)
Uri: “I can't - it's not a simple yes or no.”
(The judge takes the documents, looks them over, hands them back.)
Judge: “For the court record, the answer is No.”
Fiction 2: The author of IF asserts that the IRS 3609 letter, which included a requirement to supply names and addresses of recipients of NCC funding, was misrepresented by the defendants as binding on NCC. This, he writes, was successfully shown by expert witness Raya Tahan, whose “testimony was unrefuted by any other expert” (IF, p.462). Later, Uri adds that the judge “attempted to put words in her mouth” and showed “personal bias against our respected and credible Expert” (p.465-6).
Fact: Uriel apparently did not consider the judge qualified to refute Tahan’s testimony. But the Appeal Court did. First they repeated the judge’s refutation (Appeal Court Decision, Appendix C, Source 12, p.12-13):
Furthermore, the trial court found that Ms. Tahan’s testimony concerning the 3609 [IRS] letter was improper because the letter is “a plain English form letter” and “[h]ow [Ms. Tahan] can say that that doesn’t mean that you provide names when requested to do so escapes me. I’m embarrassed that [Ms. Tahan] would say that and I think it is a disservice for the jury when they are trying to seek the truth.”…The trial court also advised Ms. Tahan to never again try to testify in that manner as an expert witness. [5]
This last statement was the context for the admonition quoted in IF, p.465-6, which the author likens to “the husband…angrily intimidating his wife.” The above footnote (5) quotes the judge’s final comments regarding this issue (See also Appendix C, Source 7, p.17-18):
"The Court found her non-credible. The Court found her misstating the law. The Court found her willing to change her testimony and the Court contemplated whether she should be referred to the State Bar for her demeanor in court and her lack of candor to the Court in explaining her opinions."
The Appeal Court then upheld that conclusion (p.23):
The court correctly concluded that Ms. Tahan lacked credibility, was not candid with the court and repeatedly changed her testimony. Moreover, the court properly found that Ms. Tahan misinterpreted the IRS letters and regulations because the regulations and the letter were clear on their face. Accordingly, the comments were not improper and not an indication of bias.
In his cross-examination testimony, when confronted with the IRS audit addendum specifying information “deficiencies”, Uri likewise lacked credibility (trial court transcript, 3/may/06, p.140):
MR. DELOZIER: The point was that you refused to provide the information that they've asked for.
THE WITNESS: The statement is false on its face. We provided every bit of information the IRS required; every bit of information that the NCC required. Always and at all times. Period. Full stop.
This was the position Uri had maintained since the issue first came up in the NCC board, long before the audit. The following day in court, Uri was asked about his response to Tom Mercer’s feb/2003 email (See Appendix C, Source 2) and was again confronted with the IRS requirements (from my eyewitness notes, 4/may/06):
[Defense reads Tom's letter, expressing concern about IRS requirements, and Uri's answer, asking Tom to stop "throwing hand grenades".]
Defense: “What did you mean here by ‘hand grenades’?” Uri: “I felt pressured.”Defense: “Was Tom concerned here about IRS law?”
Uri: “Tom was a big donor; he was worried about having to pay taxes on his donations.”[Defense quotes Uri's letter, which called this a "rabbit trail"] Defense: “Do you still think his concern was a ‘rabbit trail’?”
Uri: “Not now.”Defense: “Do you still think you weren't in violation of IRS law?”
Uri: “We were never in violation.”
Along with his conclusion, Uri’s aggressive tone was diplomatically condemned in the judge’s final remarks (last day transcript, Appendix C, Source 7, p.29-30]:
…a lot of emotion was built into the communications that were made that, in retrospect, could have been removed and maybe should have been on both ends. I'm sure that the parties agree with me on that when they hear e-mails talking about grenades, guns, weapons, murder and things like that and the Court is just incredulous at how far removed that is from the good work that you all do and the Court hopes you keep doing day in and day out.
Fiction 3: The author repeatedly claims that he was defamed by the Defendants in the newsletters they sent to their donors (p.442 for example). These became the grounds for his charge of defamation. The details are vague in the book. But according to the plaintiffs’ Appeal Brief (p.22), the main defamation was that they had reported the results of an IRS audit to NCC donors. The Brief then adds to the charge: the IRS audit itself had been prompted by an attempt at defamation:
A large portion of the trial testimony centered on an IRS audit of the NCC….The Defendants [sic] portrayal of this audit was to discredit Marcus as former President of the NCC and to justify the statements made in Defendants' newsletters regarding Marcus' handling of NCC funds and reporting to the IRS…. However, it was Defendants themselves that prompted the audit by attempting to report some alleged wrongdoing on the part of Marcus to the IRS after his removal as President.
Fact: NCC attorney Steve Sherer testified at the trial (16/may/06) that he himself “essentially wrote” the disputed newsletter. (See Fiction 4 below)
As far as this audit being “prompted” by the defendants, its likelihood had been discussed by the NCC Board as early as feb/2003 (Appendix C, Source 1). Then-Board member Tom Mercer noted that “the provisional period” for NCC’s tax-exempt status was ending on 31/dec/03, after which the organization would have to submit to IRS inspection which “may approach the level of an audit”. Tom’s email indicates that this issue was raised at least twice while Uri was still NCC President, along with concern that NCC would not be found compliant with IRS requirements.
Uri dismissed these concerns with eloquent sarcasm. (Appendix C, Source 2)
Two years later, Uri became aware that the IRS audit, which he had been sure would be favorable, was in fact going to be problematic for him. In aug/2005, more than half a year before the trial began, the defendants filed an amendment to their disclosure statement, which formed grounds for a counter-claim against the plaintiffs based on the IRS audit (First Amendment to Disclosure Statement, p.3-4):
The board members were concerned about NCC losing its charitable status and about their own possible liability as board members.
The failure of Marcus to supply the accounting was a violation of his fiduciary duties as a member of the board, and as an officer of the corporation. The failure constituted good cause to terminate Marcus's board membership and to terminate him as President of the Board.
The IRS did indeed audit NCC. The IRS noted a deficiency for 2002 and early 2003, prior to the termination of Uri Marcus, in the records of NCC. Specifically, NCC lacked the names and addresses of the ultimate recipients of the funds raised by NCC. The IRS representative who conducted the audit indicated that the actions of Mercer, Wyner and Pyles in removing Uri Marcus ultimately saved NCC from losing its charitable status and being subject to taxes and penalties.
LEGAL THEORY IN SUPPORT OF DEFENSE AND COUNTERCLAIM
A. Breach of Fiduciary Relationship
In addition to the legal theories set forth in Defendants/Counterclaimants 26.1, Defendants/ Counterclaimants also state:
Marcus and McLean owed a duty of care, loyalty, candor and strict honesty to NCC and to their fellow board members and officers. The failure to protect NCC's charitable status subjected NCC, its board members and its officers to the possibility of taxation and heavy penalties. This was a breach of their duties.
The IRS audit cover letter and addendum were also submitted as exhibits ( Appendix C, Sources 5 and 6); in the book, these are collectively “the IRS letter” that Uri’s expert witness viewed (IF, p.465, explained in Fiction 2 above).
In response to the plaintiff’s claim that mention of this completed IRS audit in a NCC newsletter constituted defamation, the Appeal Court agreed with Judge Ryan’s verdict (Appeal Court Decision, Appendix C, Source 12, p.27): “[T]he directed verdict as to the personal claims was appropriate because the trial court properly found the statements in the newsletters were true and qualifiedly privileged.” This last term is explained in standard law dictionaries:
The defense of qualified privilege permits free communication in certain relationships without the risk of an action for defamation. The person communicating the statement usually has a legal, moral or social duty to make it, and the recipient will have a corresponding interest in receiving it. The relationship should not be abused for the purpose of relaying untrue reports and must not be motivated by malice.
The Appeal Court went on to rule that the NCC newsletters not only “were factually accurate” (p.29) but “also served a public benefit” (p.36) because “these donors were informed of the potential for NCC to lose its tax-exempt status. This could have in turn affected their personal tax liability.”
Fiction 4: According to IF, p.452, Uri’s former colleagues are accused of deliberately misleading donors about Uri’s removal from the post of President. He reports that they published two letters spreading “falsehoods” about him.
The author singles out their mention of the FBI (p.452) as a particularly “evil report” which had no substance: “…even going so far as to suggest that the FBI was investigating the matter, after they (the FBI) had already apprised them, prior to the publication of their two missives, that an investigation was not warranted because none of their allegations were based in fact or backed by collaborating evidence.” (emphasis in original)
Fact: This mention of the FBI, along with its context, was officially settled in the 2006 trial, and the judge referred to it in his closing statements (see p.27-8, last-day trial transcript, Appendix C, Source 7).
The irony, however, is that this accusation against Uri, which Uri himself makes public (both in IF and in a newsletter), was originally banned from testimony; it only appears in the court record because the plaintiffs later disregarded that ban. Here are my eyewitness notes from that bizarre chain of events (11,16/may/06):
[Tom Mercer direct testimony 11/may/06:]
Defense: What was new to report in June?
Mercer: The two $10,000 checks- our lawyer told us that NCC money loses its tax exemption when it's deposited into a private account.Defense: Did you ask Uri about these checks? He says you didn't.
Mercer: We had an exchange with Sharon about it.
[…..]
Defense: By the time of the June letter, you were still asking Uri for missing information?
Mercer: Yes.Defense: The paragraph about the involvement of the FBI - was that approved by your lawyer?
Mercer: Yes, and the board.Defense: You met with an FBI agent about these checks?
Mercer: Yes, and he told us that it was a violation, but too small an amount to pursue. He said they would send it to IRS criminal investigation.Defense: Why did you tell donors about this?
Mercer: Because they could lose their tax exemption and have to pay back taxes - also all board members would pay penalties.COURT RECESSED (jury sent out)
[Plaintiff attorney Larson protests Tom's testimony about the FBI agent - claims there was an agreement not to go into that fact. Judge Ryan says the testimony can be stricken from the record if necessary. Larson makes a formal request to the court to “preclude” (ban this issue from testimony). But a few days later, he violates his own ban in questioning Tom…]
[Tom Mercer cross-exam, 16/may/06:]
Plaintiff: Didn't the FBI tell you the records were insufficient for prosecution?
[Judge Ryan interrupts, reminding Larson of his request to preclude the FBI issue – asks him if he is now reversing it. Larson insists that he wants the question answered.]
Mercer: Yes, they said if it had been $100,000 they would have jumped at it.[NCC attorney Steve Sherer direct testimony, 16/may/06:]
Defense: Why did you go to the FBI?
Sherer: I was very concerned about the checks deposited into Uri's account. Maybe he didn't intend anything by it, but I was worried. Officers can be paid a salary, but not special payments like that. It can cause problems for Uri in taxes, problems for NCC - and it's a problem for the donors. If you go to the authorities before they come to you, it shows good faith and not criminal intent.Defense: What happened?
Sherer: [FBI agent] Ms. Kessler said there was strong evidence of a criminal act, but not enough money to prosecute.Defense: Why tell the donors?
Sherer: The directors have a duty to inform donors. Plus there were negative and accusatory letters from donors, so someone had already told them something.
Fiction 5: Uri suggests that the double lawsuit which he initiated was the price he was forced to pay because he “challenges Christianity’s time-honored convictions” (p.441). Later (p.453), he cites more mundane reasons for the litigation: “defamation” and a violation of “corporate protocol”. Earlier he cites his removal from the post of NCC President (p.139).
Fact: The first is entirely fictitious, but neither are the others a complete account of his lawsuit complaints. Read an orderly explanation of the charges ( Appendix C, Source 8) and the defense attorney’s press release (Appendix C, Source 9).
Fiction 6: The author of IF reports a sinister, unspoken “message to the Jewish world” (p.480) from the judge, in order to support a claim of anti-Semitism. In Uri’s fanciful pseudo-quote (p.481), the English is somewhat garbled, but it is generous with the malice attributed to the judge:
There is no doubt that as he wrote and filed his judgment against me exactly on Yom Ha’Kippurim in order [sic] to communicate his message: “As a Jew of the race of those who killed god, you may succeed to release yourself from your sins and your vows on this day, and thus distance yourself rejecting our god, our trinity and our savior, from whose followers you have received money in my nation to benefit those like you, in your nation, but you will not succeed to escape from my judgment for having done so.”
Perhaps forgetting that this literary gem had already been inserted, the author offers a shorter version four pages later (p.485), more grammatically correct but with the same vindictive tone:
There is no doubt that as he wrote and filed his judgment against me on the 2 nd of October, 2006, on Yom Ha’Kippurim, it was likely his way of saying, “you may succeed to release yourself from your vows to distance yourself from and reject our god, from whose followers you, your organization and your people have enjoyed financial benefit, but you will not succeed to escape from my judgment for having done so.”
Fact: Readers are invited to compare the above with the judge’s actual remarks. Here is an excerpt from the trial court transcript (17/may/06, p.18-22) where he gives the Plaintiff some friendly advice (See the entire document, Appendix C, Source 7):
Mr. Marcus, when you do business, as a non-profit in Israel, under current law after 9/11/2001, it's as simple as this: If you can't verify where the funds go, to the person or to the project, they can seize all the assets and I know that you don't want that for your corporation. You want to be able to help people in Israel. That's the whole point of what you are doing.
By the same token, the fact that they [NCC] haven't been arrested or shut down or seized by the IRS doesn't mean that the defendants in this case have to wait for disaster to strike to take some preventative action when they know there's a requirement for full accounting. They have to follow through with that….
Unfortunately, there are accounting rules that have to be followed and notwithstanding your good motives and your good intentions to people in Israel, that is a legitimate concern that the board members -- even if you have great motives, even if you can show after the fact that it was spent, as I'm sure it was, on the poor in Israel -- that doesn't allay their concerns and their problems of having to deal with trying to avert disaster before it strikes and both NRF and NCC would have been shut down completely without compliance to the letter by the federal government after 9/11/2001, if they felt there wasn't sufficient documentation of where this was going to the person or to the project….
Uri’s Appeal Brief quoted parts of the above admonition, rejecting them as “errant conclusions” (p.29). But there was no protest made to the Appeal Court about the hidden “message” of anti-Jewish spite which is spelled out in the above pages of IF.
Fiction 7: The author claims (p.453) that in the nearly three years after serving his former colleagues with the double lawsuit in sep/2003, “additional pleadings were made to settle our disputes before they reached a courtroom, but the Defendants rejected all attempts.”
Fact: I was informed by the defendants that a pre-trial settlement conference took place (12/aug/05) shortly after receiving the results of the IRS audit of NCC. This was a pivotal stage, since the audit results were viewed as conclusive enough to guarantee that the defendants would win if Uri went through with his lawsuit.
In that meeting, the mediating judge urged both sides to agree to walk away and bear their own expenses thus far. Uri indicated his agreement, on the condition that both sides would also submit to a gag order which would prevent them from talking about the case. After some discussion, the defendants agreed. Uri then added a new condition: that the defendants would pay all his legal expenses as well as their own. The defendants naturally refused, the agreement broke down, and the case went to trial eight months later.
Fiction 8: The author of IF spends quite a few pages describing religious bias in Judge Ryan’s conduct in his courtroom, which Uri characterizes as specifically anti-Semitic (for example, p.456-7, 459-60).
Fact: In the plaintiffs’ Appeal Brief, a tome of 124 pages, the “personal bias” issue is raised without a word about religious or anti-Israel motivation. Likewise the bias charge is laid to rest (Appeal Court Decision, p.16-23), also without a word about any religious context.
Fiction 9: The author of IF repeatedly tells (p.460-2,482-4) that the trial judge “set in motion” a plot to prevent Uri’s side from presenting all the evidence needed for a fair trial.
Fact: Of the 7 full days of testimony (spread out over 2.5 weeks), the two plaintiffs received 5.5 days for testimony, and the six defendants received 1.5. As a result, five witnesses for the defense were never heard, including three of the defendants who were denied an opportunity to speak. Despite that imbalance, the plaintiffs did not prove their charges, and on 11/may, day number 5, this exchange took place (from my eyewitness notes):
[JUDGE SENDS JURY OUT]
[Judge Ryan announces he is going to dismiss the derivative suit, which includes Counts1-5, leaving only a few issues relating to the mutual defamation claims. He is not telling the jury at this time, only the parties in the lawsuit.]
(Turning to plaintiff attorney:) "Your clients [Marcus and McLean] are not credible - when you question them, they remember everything - when Mr. DeLozier [for the defense] questions them, they remember nothing."
[Ryan expresses regret that he had not granted a "Summary Judgment".
Legal definition: a decision made without a trial, on the basis of statements and evidence presented for the record. “Summary Judgment is used when there is no dispute as to the facts of the case.”][Judge then recommends that the defense present their case in a time frame of 2 days, with the focus exclusively on what happened after Uri’s removal as NCC president.]
Defense attorney: "But the plaintiffs have had 1-1/2 weeks to present their case, and the jury has yet to hear the other side."
Judge Ryan replies that the derivative suit is settled - the defense has already won that part. He was confident that "the defense can present a credible case in the allotted time."]
At the end of 16/may, day number 7, my eyewitness notes record that Judge Ryan announced he was ready to give a "directed verdict on the remaining charge" (Uri's personal defamation claim against NCC) "and send the jury home" -- unless by the following morning Uri's attorney "can make a strong case that there is still evidence to hear." That case was not made, and the next day (17/may) concluded the trial with closing arguments and the directed verdict. (See Appendix C, Source 7)
Fiction 10: Uri writes that he lost his appeal because of the “incompetence of my own Arizona Appellate Attorney” (IF, p.486). For support he quotes the last three paragraphs of the 38-page Appeal Court decision, which imposed penalties on his attorney for failure to follow legal rules.
Fact: The Appeal Court went beyond its duty to ensure that the Appellants would not suffer loss because of the shortcomings of their attorney. On p.15-16, the judges detail the serious problems with the Appellant Brief, but then they write:
However, we remain inclined to decide cases on their merits and not to punish litigants because of the inaction of their counsel…. As a result, although this court is reluctant to perform the duties of counsel for either party to an appeal, we have independently reviewed the record for support for Appellants’ claims.
This extra effort to give Uri a fair hearing went unacknowledged in the pages of IF.
Primary-Source Documents tracing the saga described in IF
(Where these are noted as “excerpts”, the full documents are available on request. Full third-party documents are available subject to permission.)
Source 1: Letter of concern about IRS obligations from then-NCC board member Tom Mercer to then-NCC president Uri Marcus, 14/feb/03 (excerpts)
Background: This letter and its reply ( Source 2 below) were filed as exhibits in court and discussed during Uri’s testimony.
----- Original Message -----
From: tmercer
To: Tom Mercer ; Kay McLean ; Lin Pyles ; Morris Ruddick ; Sherri Wyner ; SSWLLP@aol.com ; Nehemiah Trustees Covenant Fund
Sent: Friday, February 14, 2003 8:42 PM
Subject: NCC Legal ConcernsUri and members of the NCC board,
I wish to bring to the attention of the entire board my concerns in regard to the NCC. As I stated in Bremerton, my first concern is with the financial security of my family and the next is with the vision of the NCC. I say this because if the NCC is found in violation of IRS or corporate laws (we as a board members [sic]) may be held accountable for penalties for our tenure as a directors. [sic]
While talking to Steve Sherer, I found that he had a copy of the initial incorporation papers, bylaws and letters from the IRS. I asked for and received a copy of these papers. After reading the papers, I believe that everyone on the board must have a copy. These papers detail the legal requirements that we as a board must follow in order to have legal 501(c)(3) organization.
First, are you aware that the provisional period for the NCC’s 501(c)(3) ends on December 31, 2003? And thereafter the NCC has 90 days to report to the IRS? This may approach the level of an audit.
[…..]
In paragraph 15 Mr. Miller states that the Form 990’s for the last three years need to be available for public inspection. Could these be made available to the board members.
In paragraph 17 Mr. Miller states, "To assure your continued exemption, you should keep records to show that the funds are spent only for those purposes." I have questions and concerns in this area. This indicates that there should be records readily available to the board (and to the IRS) to indicate where the funds are going. Are the financial reports for the past three and a half years in the corporate book? If so, could these be made available to the board? In consideration of the law, we must have monthly financial reports of the income and dispersion of funds. Again in consideration of the law, the board must approve all fund transfers. If the board has not approved the transfer of funds, a transfer by a board member could be deemed as fraud.
The excerpt that [NCC board member MR] sent from "Boardroom Confidence" by Bobb Biehl and Ted Engstrom, in the section entitled "Not having available a record of previous decisions." reiterates the need to have more information for the board. How can we be expected to make informed decisions without sufficient data?
As [MR] stated in his resignation letter, there needs to be a transition from a one-man show to a proper corporation. Unfortunately, this should have happened in 2000, just after incorporating the NCC. What changes must we make in order to make the NCC a legal, viable corporation?
Uri, as far as the agenda goes for the next meeting, please include [MR's] resignation. The board needs to officially recognize it and record it in the minutes.
I wish to reiterate that I think the problem between you and Sherri is far smaller than the problems we will have with the IRS.
Please understand that I will send all future email to the entire board and desire that all communication with me be the same. If a reply to my emails does not include all members of the board, I will forward it to everyone with my answer. We are at a time when we need to have all NCC communication out in the open.
Tom
Source 2: Uri’s reply to Tom, 16/feb/03 (excerpts, emphasis in the original)
----- Original Message -----
From: Nehemiah Trustees Covenant Fund
To: NCC Board:
Cc: SSWLLP@aol.com
Sent: Sunday, February 16, 2003 11:30 AM
Subject: Uri Marcus Comes Clean and Confesses AllShalom Tom and everyone else who has any more hand grenades ready to throw.
I mean, here were are [sic] in the middle of a board crisis. I just got back from a fund raising trip, where we managed, despite all the odds, to raise over $15,000, after doing 24 venues in 17 different cities over 22 days. Israel is about to experience war again, any day now. Every one of the 6 million souls in our tiny country is wondering if they won't wake up tomorrow morning with a SCUD missile in their bedroom, or if they will wake up at all. We are fighting daily for our lives, I am going to fight for our nation in another three weeks, when I go to the army, and some of us are trying to help so many needy amongst the saints in the meantime...
But you Tom ... you are worried that the IRS might make you pay back taxes because [the former NCC treasurer] is a crook, and because you THINK I was born yesterday, and that I don't know a thing about the legalities or the responsibilities of running a Corporation, or how to keep minutes, or how to keep track of our income and expenses.
So, in order to put your mind to rest, and to make sure that the rest of you sleep well at night, and to make sure you are able to get on with the business of the day, and to convince you that the "problems between Sherri and I are far GREATER than any problems we will have with the IRS," rather than the opposite, as you suggested, please find attached, all the income/expense figures you could ever hope to have in your possession…. [some 1500 pages].
If this material doesn't convince you that we are legit, and that the IRS in [sic] NOT after us, and that I have NO DOUBTS what-so-ever that our 501 status is intact, and WILL be reviewed favorably at the end of this year, and that YOUR own lack of trust in this corporation, its leadership and its past actions are unfounded and unjustified, then feel free to get in touch with our accountant Irene Roseman, and I'm sure she will be happy to provide you will any and all documents you could ever dream of, until you are convinced.
[…..]
Can we now stop getting detoured down rabbit trails?
Can we now stop suspecting that we are in violation of IRS Tax Laws?
Can we now stop running about scared, and throwing everything into a panic?
Can we now stop ducking for cover?
Can you stop thinking that you are personally liable for what we didn't do?
Can these unreasonable, ridiculous fears please be terminated?
Can you just put your minds to rest for a change?Can anybody on this Board act with just a tiny bit of professionalism and just do what needs to be done?
I would be ever-so-grateful, if you people would just put your guns and knives down and put the pins back into the hand-grenades, and get on with the task that I called you to, when I asked you to come aboard.
Organize your meetings, and do what has to be done, and please, just let me know what you decide, and then we'll all be able to sleep better at night.
Thinking of you all from the Land of Paradise and peace... I thank you for your Trust in advance.
Uri Marcus
President, NCC
(is that the Nehemiah Chaos Club, or the Nehemiah Covenant Corporation... I can't remember which?)
Source 3: Letter to Israeli mediators from NCC attorney Steve Sherer, oct/2003, answering Uri’s charges involving NCC and Restorers of Zion and his resulting demand for mediation.
Background: This letter was sent four months before the mediation meeting (Source 4). It was addressed to the lead mediator, with copies sent to the rest of the organization. It was not mentioned during the mediation process, or at any other time.
SHERER & WYNKOOP, LLP
730 N. Main St.
P.O. Box 31
Meridian Id 83680Re: Mediation Weiss/Marcus
Dear Sir:It has come to my attention that Uri Marcus is seeking "mediation" with Hannah Weiss relating to the Amuta that Hannah has formed, called Restorers of Zion.
I am the legal counsel for Nehemiah Covenant Corporation, an American non-profit corporation founded by Uri Marcus. Uri Marcus was instrumental in raising significant funds in the United States for Messianic Believers in Israel. These funds were donated to the Nehemiah Covenant Corporation (NCC) again, a U.S. non-profit corporation.
Mr. Marcus was removed as President of Nehemiah Covenant Corporation in March, 2003. Though his removal was not a friendly one, he remained as a Board member until he was later removed because of his breach of duty of loyalty to the Corporation.
At that time, Nehemiah Covenant Corporation had several thousand dollars in its accounts. However, these funds did and do belong to Nehemiah Covenant Corporation (NCC), not to Uri and [SM] personally, nor to Nehemiah Trustees Covenant Fund (NTCF), the Israeli Amuta of which Uri is the General Sec. Hannah Weiss was a board member of NTCF until approximately six months ago. (I am attaching a copy of Hannah's resignation letter to this letter.
After Uri's removal from NCC, he demanded that the money from NCC be turned over to NTCF. He alleged that NCC was a "conduit" for funds to flow to NTCF.
American tax law does not permit an American non-profit corporation to simply be a "conduit" to a foreign corporation. In fact, it is these very relationships that have been under significant government scrutiny since the September 11, 2001 terrorist attack. As a result, NCC always has had and continues to have control of its own funds. In the past it exclusively provided those funds to NTCF for the Believers in Israel, but it has never been required to do so.
It is my understanding that Uri was voted out of NCC for two reasons. First, there was an ultimatum provided to the Board by Uri that either Sherri Wyner (the Treasurer, who replaced the former treasurer that Uri removed) would be voted out or he would leave. The majority determined to keep Sherri. Second, and something that the officers and board members learned more about after Uri's departure, was that there has been little or no accountability for expenditures of funds. The Board was aware of little more than transfers of funds from NCC to NTCF and to others, and there was no oversight for the expenses that had been incurred on behalf of NCC. (NCC was paying these expenses, however - sometimes by direct payments by Uri to Uri's credit card).
While Uri was still a board member of NCC, several of NCC's donors were contacted and told that NCC was collecting money under false pretenses and had been withholding desperately needed funds from Believers in Israel. Mr. Marcus started a competing organization in Phoenix, Az., the day after his removal as president - while still on the Board of NCC and collecting a "consulting fee" from the NCC, and initiated a transfer order for NCC's mail (donations) to be transferred to his new corporate address.
Additionally, transfer orders were initiated for NCC corporate phone lines, and personal home address mail transfers were placed with the postal service and with other companies stating that NCC had moved its corporate offices to the new organization's headquarters. This is a clear violation of any Director's duty to NCC, and is a clear attempt to usurp the postion and contacts belonging to NCC.
Mr. Marcus was explicitly told at the meeting where he was removed as president that he was not to attempt to access NCC accounts. This resolution was breached by Mr. Marcus. He did access NCC accounts on-line after the meeting.
Mr. Marcus has sought mediation with NCC for "recovery" of funds held by the NCC. However, even with little knowledge of American tax law, I hope it is clear that NCC cannot accept tax deductible donations without having the right to apply those funds as NCC sees fit. Frankly, Mr. Marcus and others with him in Israel have provided so little information regarding use of funds (including reimbursements to his own personal credit card account), that there is absolutely no accountability for the wise expenditure of such funds. NCC has therefore been attempting to provide assistance for Believers in Israel through other means, including a new Amuta set up by Hannah Weiss and other volunteers in Israel.
For Mr. Marcus to claim any interest in these funds is disingenuous at best. The NTCF has no right to NCC funds. It has no right to funds that NCC may distribute to believers in Israel through other organizations. This is startlingly clear in light of Uri's own complaints against Hannah relating to her contacting NCC officers and directors (See Hannah's resignation letter).
I hope this synopsis will provide you with sufficient information to quell the curiosity that likely surrounds Mr. Marcus' allegations. Uri is certainly a compelling speaker and has been a very good fund raiser, but unfortunately refused to be accountable to his American Board. He refused to account for his activities and expenditures, and was not willing to cooperate with the NCC Board to address the issues important to the Board and to the tax-exempt status of NCC.
Sincerely,
SHERER & WYNKOOP, LLP
Source 4: Messianic mediation (Yehudim Hasdei Yeshua, or Yech”i) between myself and Uri Marcus - charges presented and mediators’ conclusion, 11/mar/04.
Background: This is a summary from a record jointly written and approved by all sides: me, Uri, and the mediators. I was not allowed to keep a copy of the “evidence” which Uri had presented against me in the meeting. I was also denied permission from the mediators to publish the complete record of the mediation (which includes my defense). But I was given permission to publish a summary of the mediation issues and the final decision.
Attending the meeting:
[for Uri's side ] Uri Marcus, Elazar Brandt, Michael Kadmiel, Sharon Marcus, David Tel-Tzur, Emanuel Gazit
[for Hannah's side] Hannah Weiss, Arye Powlison, Hillel Weiss
Yech"i mediators - Joseph Shulam, Tsvi SadanCharges brought by Uri:
1. Hannah influenced the U.S. ministry, NCC (Nehemiah Covenant Corp), to fire Uri from his post there as president.
2. While a member of NTCF, Hannah influenced NCC against Uri by initiating contact with their board and slandering him.
3. Hannah accepted funds from NCC for her new ministry, Restorers of Zion, an activity that was unethical and unlawful, since Uri alone had personally raised those funds for NTCF and therefore NCC was legally and morally obligated to turn over those funds to his Israeli ministry, NTCF.
4. The decision of NCC to support Restorers was pre-arranged while Hannah was still with NTCF, and constitutes dishonorable behavior.
5. Hannah received and answered correspondence that passed between NCC and NTCF.
6. Hannah tried to drive a wedge between Uri and his wife [SM] by writing to her and offering her help, should she leave him.
7. Hannah libeled Uri and NTCF on the Restorers website, by accusing Uri of misusing donor funds.
8. In the months that followed [her resignation], she became very much involved in trying to harm NTCF, largely through her dealings with NCC.
9. Hannah avoided answering calls from Yech'i for mediation.Uri's demands:
Hannah must apologize for the damage caused to NTCF by her contact with NCC, and seek to repair that damage.
Hannah must return all money that she (or Restorers) received from NCC, funds that rightly belong to Uri and NTCF.
Hannah must remove all statements about NTCF from the Restorers website.Conclusion of mediators:
Yech"i decided not to press Hannah to meet Uri's demands, except for the last (the removal of all reference to NTCF and Uri on the Restorers website).Yech”i later prepared a brief statement to be signed by both sides:
In spite of disagreements between us and our organizations (NTCF and Restorers of Zion) we have come to an agreement to cease any public airing of our grievances and refrain from any further acrimonious remarks against each other or against our respective organizations. To wit we have signed this statement.
I accepted the above conclusion and returned a signed copy of the statement. All information referring to Uri and NTCF, including Uri's impending lawsuit against NCC, was removed. The only reference that remained was a statement mentioning the dates I had served on the NTCF Exec (aug/2002-feb/2003).
Uri did not accept or sign the mediators’ statement. Instead, he sent a letter to me and Yech”i on 24/3/04, repeating some of the same accusations voiced in the meeting, and adding new ones. He repeated the two demands which the mediators had declined to support, and threatened me with legal action if I did not comply. (that letter is available on request)
Source 5: IRS audit result notification, released in jul/2005.
Background: Sean McCoy is the tax accountant who represented NCC to the IRS during the audit. McCoy was scheduled as a witness for the defendants in the 2006 trial, but due to the time limitations imposed on the trial (noted in IF, p.461), he was not able to testify.
Source 6: The IRS addendum enclosed with the above cover letter.
Background: This document, referred to in the trial as a 3609 letter, specifies the "deficiencies" found in NCC’s audit and referred to above. It was also quoted in the Appeal Court Decision (p.11). Readers of IF can compare the author’s claims (p.465), with paragraphs 3 and 4 of this IRS form.
Source 7: The complete trial court transcript for the final day, 17/may/06
Background: This includes the closing arguments of plaintiffs and defendants, final remarks of the court, and rulings. For the convenience of readers who want to check the various claims in IF against the actual court statements, here is a general guide to where the following points of law and opinion are mentioned in the transcript:
I have inserted four background notes into this transcript, explaining comments which might be otherwise mystifying; these are clearly marked as insertions. As the source following this transcript, I also provided simplified explanations of the legal charges, for the benefit of those who are not familiar with the “legalese”.
IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
IN AND FOR THE COUNTY OF MARICOPA
KAY McLEAN, et al.*
vs
TOM MERCER, et al.** No. CV2003-016623[* Plaintiffs: Kay McLean, Uri Marcus; NCC is a plaintiff for “derivative actions”- see p.28-29]
[** Defendants: Tom Mercer, Janice Mercer, Lin Pyles, James Pyles, Sherri Wyner, Steven Wyner]
A P P E A R A N C E S
For the Plaintiffs: Gregory A. Larson, Esquire
For the Defendants: G. David Delozier, Jr., Esquire00003
1 P R O C E E D I N G S
2
3 THE COURT: We're back on record in
4 CV2003-016623. Let the record reflect the presence of
5 parties and counsel.
6 Counsel, I had indicated that this would
7 be an appropriate time to consider motions from the
8 respective parties on the issues of Rule 50 and entry of
9 directed verdict. Did you want to be heard,
10 Mr. Delozier?
11 MR. DELOZIER: Yes. Thank you, your
12 Honor. Arizona procedure Rule 50, Section A,
13 Subsection 2 deals with motions for judgment as a matter
14 of law and defendants in this case are seeking a
15 judgment as a matter of law upon the remaining claims
16 that you haven't already ruled on. It's our position
17 that Mr. Marcus has not proven that he was damaged.
18 There was no damages personally, that I understand that
19 he relays. What I understood his testimony was and the
20 evidence presented was that to any funds that were
21 accrued to the benefit of NTCF and not to him
22 personally. He testifies there is no economic loss to
23 himself. He's a plaintiff, not NTCF. There is no --
24 the testimony that I recall that there was no damage to
25 him emotionally, medically or physically.00004
1 The newsletters that Mr. Marcus
2 complained about, it's our position, were privileged
3 communications. In Arizona, a communication is
4 protected by conditional privilege when the speaker has
5 a duty to make the communication and it is made in the
6 performance of that duty and the duty maybe legal, moral
7 or social. The cases that support that position are
8 Roscoe versus Schoolitz, 105 Ariz. 310, 466 P.2d 18.
9 That's a 1970 case.
10 Another one is Aspell versus American
11 Contract Bridge League of Memphis, Tennessee. That's at
12 122 Arizona 399 at Page 400 and 595 P.2d 191 at
13 Page 192. That's Arizona appellate 1979 case.
14 Of course, it's up to the Court to decide
15 whether the communication was privileged, but the burden
16 is then on the plaintiff to show that the privilege was
17 abused by showing the defendants were acting with malice
18 in fact. To establish that a privilege occasion arose,
19 a defamation plaintiff [sic, defendant] must prove that the communication
20 in which the communication was made created an
21 obligation to speak. Here, the board members were
22 Nehemiah Covenant Corporation, NCC; that's a charitable
23 corporation recognized as such under Arizona law, as
24 well as Internal Revenue Section 5013(c), and that
25 solicitation of funds from donors across the United00005
1 States, those donors expected that the donations would
2 be tax deductible. When the defendants made the
3 decision to remove Mr. Marcus as president of NCC, they
4 immediately received concern letters from donors. The
5 defendants at that point had a duty to advise the
6 persons who had given monies to NCC as to what had
7 happened and why they had taken the actions that they
8 actually took. The defendants had a qualified privilege
9 to send the newsletters out with the statements about
10 Mr. Marcus.
11 If the Court determines that a qualified
12 privilege exists, then it must so instruct the jury and
13 must instruct the jury as to what is an abuse of the
14 privilege. If there's a minimal showing of abuse of the
15 privilege, if the plaintiff fails to come forward with
16 the evidence of an abuse of privilege, the Court may not
17 submit to the jury. And the case that supports that
18 position is Green Acres Trust versus London, and that's
19 at 141 Ariz. 609 and 688 P.2d 617, a 1984 Arizona case.
20 The plaintiff may establish abuse of the
21 qualified privilege by demonstrating the existence of
22 either excessive publication or actual malice. And that
23 position is found in Burns versus Davis, 196 Ariz. 155
24 and 993 P.2d 1119, an Arizona appellate case from 1999.
25 An abuse through actual malice occurs00006
1 when the speaker makes a statement knowing it is false
2 or with reckless disregard of whether it is false. The
3 defendants have demonstrated here that the newsletters
4 were true, that they did not put Mr. Marcus in a false
5 light, and that they were careful in drafting and
6 sending out the newsletters. Mr. Marcus has not shown
7 any abuse of the privilege through actual malice.
8 The second way that plaintiff can
9 abuse -- can show abuse of privilege is through
10 excessive publication. Excessive publication occurs
11 when there is publication to an unprivileged recipient,
12 not reasonably necessary to protect the interest upon
13 which the privilege is grounded. That's from Burns
14 versus Davis, 196 Ariz. 155, 993 P.2d 1119, Arizona
15 appellate 1999 case.
16 Here, the evidence is that the
17 newsletters went to former donors and supporters of NCC.
18 Mr. Marcus has not shown that any unprivileged person
19 not necessary to protect the interest of NCC and its
20 donors received these newsletters.
21 Also, we have the issue of public figure.
22 Mr. Marcus is a public figure and it's our opinion that
23 he must prove malice on behalf of the defendants. The
24 Court should rule, and I'm requesting that it do so,
25 that Mr. Marcus is a public figure and that he has to00007
1 prove actual malice on the part of the defendants to
2 actually recover.
3 So what is a public figure? An
4 individual may become a limited purpose public figure if
5 he's -- I'm quoting -- "thrusts himself or his views
6 into public controversy to influence others." That's
7 from Hutchinson versus Proxmire. That's United States
8 Supreme Court case, can be found at 443 US 111 at
9 Page 135, 99 S.Ct. 2675 at Page 2688 and also at
10 61 L.Ed.2d 411. It's a 1979 case.
11 If a person is a public figure, he cannot
12 recover damages for a defamatory statement relating to
13 the issue upon which he has become a public figure,
14 unless he can prove that the statement was made with
15 actual malice. Cases supporting that position are
16 Curtis Publishing Company versus Butts, 388 US 130,
17 Page 162; 87 S.Ct. 1975, Page 1995; and 18 L.Ed.2d 1094.
18 It's a 1967 case.
19 We also have Gertz versus Robert Welch,
20 Inc. Case citation is 418 US 323 at Page 345. Also in
21 the Supreme Court Reporter at 94 S.Ct. 2997 and
22 41 L.Ed.2d 789. That's a 1974 case.
23 A board member or official of a
24 corporation can be a public figure. For example, I cite
25 to you Lane versus New York Times. And it's found at00008
1 8 Med. Law Rptr at Page 1623. It's out of the Western
2 District of Tennessee from 1982. There, the Court held
3 that the plaintiff, who was the business manager of a
4 religious cult, was a public figure for the purposes of
5 a defamation action against the publisher of the article
6 stating that the plaintiff took money from the cult's
7 bank account in Switzerland. Here, plaintiff has thrust
8 himself into public controversy to influence others.
9 First, he traveled throughout the United States and
10 obviously, according to his testimony, throughout the
11 world with various organizations supporting his
12 activities in, I think I heard, at least ten countries
13 and speaking out for Messianic believers in Israel,
14 raising the very funds that later become the issue here.
15 Also, plaintiff injected himself in the
16 controversy by letting the followers know what happened
17 the instant he was removed as president. This is
18 evident from the letters received, e-mails and so forth
19 received by some of the board members of NCC less than
20 24 hours after the meeting when he was voted out as
21 president. Within weeks thereafter, the e-mails came in
22 specifically stating that, quote, "I have been informed
23 by Uri Marcus via e-mail that my donations since last
24 October have not been going to NTCF," closed quote.
25 He further thrust himself into00009
1 controversy when we [sic, he] wrote his own letters to some 1800
2 people on the NTCF mailing list calling false virtually
3 everything that the NCC newsletter stated and further
4 calling to task NCC for not supporting him and NTCF.
5 It is our position that this has
6 demonstrated that Mr. Marcus is a public figure and
7 because of that, the Court must determine if he has come
8 forward with evidence to support malice to continue on
9 here. It is our opinion that there has been no showing
10 of malice.
11 The issue of false light also is a
12 controversy in the case. The requirement to show malice
13 is also -- the requirement for malice is also part of
14 Mr. Marcus's false light case, as well. There is the
15 case of Godby here -- the only one we can find on false
16 light in Arizona -- and since plaintiffs are public
17 figures, they had to show malice under that case and we
18 don't believe that they have shown malice. Thank you,
19 your Honor.
20 THE COURT: Thank you. Mr. Larson.
21 MR. LARSON: Thank you, your Honor. A
22 motion for judgment as a matter of law is proper when a
23 party has been fully heard on an issue and there is no
24 legally sufficient evidentiary basis for a reasonable
25 jury to find for the party on that issue. A motion for00010
1 judgment as a matter of law admits the truth of all
2 competent evidence introduced by the plaintiffs here and
3 all reasonable inferences to be drawn from that
4 evidence. Murcott versus Best Western International,
5 198 Ariz. 349; 9 P.3d 1088, App. 2000.
6 Judgments as a matter of law are not to
7 be used simply because the trial judge believes that the
8 moving party will or should win the jury's verdict.
9 Potter versus Wisner, 170 Ariz. 331; 823 P.2nd 1339,
10 App. 1991.
11 For this Court to grant a motion for
12 judge[ment] as a matter of law here, it would have to
13 completely discount all the plaintiff's evidence. What
14 has the evidence shown here? [Name withheld] received
15 the newsletters put out by the defendants, testified
16 that the newsletters caused him to personally question
17 the honesty, integrity and virtue of Uri Marcus. That
18 is also what the Court heard from the testimony of
19 [names withheld] who are two other donors
20 that received the newsletters, and the Court would have
21 heard the same testimony from [name withheld] if his
22 videotaped deposition had been played.
23 To be defamatory, a publication must be
24 false and must bring the defamed person into disrepute,
25 contempt or ridicule or must impeach a person's honesty,00011
1 integrity, virtue or reputation. Turner versus Devlin,
2 174 Ariz. 201 and 848 P.2d 286, a 1993 case.
3 A statement is defamatory if it tends to
4 harm the reputation of another as to lower him in the
5 estimation of the community or to deter third persons
6 from associating or dealing with him. Schnitz versus
7 Aston, 197 Arizona 264, 3 P.3d 1184, App. 2000.
8 The testimony of Defendant Mercer has
9 established that the newsletters were defamatory. The
10 allegation that Uri Marcus prevented Mercer from
11 contacting the donors was false. By Mercer's own
12 admission, he and NCC had the donor database in their
13 computers at all times and that, in fact, that is where
14 NCC obtained the names and addresses to which the
15 newsletters were actually sent.
16 The statement that the Board of NCC had
17 become concerned with the business practices and
18 operations was false. Mercer and Lin Pyles raised
19 complaints, but the other board members did not.
20 The statements that two full sets of
21 board members had resigned was false. Mercer admitted
22 that was an untrue statement and was actually made in
23 both newsletters.
24 The statement that there were repeated
25 requests for information before Uri Marcus finally00012
1 turned over documents was false.[*1] Mercer admitted there
2 was one written request and probably one verbal request,
3 though he had no idea when the verbal request was made.
4 The statement that the documents received
5 from Marcus presented disturbing issues was false. On
6 the one hand, the defendants asserted the documents
7 received from Marcus were worthless. How could
8 worthless documents present disturbing issues? In
9 addition, the testimony of Steven Sherer was that the
10 documents that caused concern came from another attorney
11 in the [name withheld] matter, not from Marcus.
12 Mercer's testimony established that he
13 was claiming NCC had certain requirements in reporting
14 where donations went and the evidence clearly showed
15 Mercer's assertion was not true. The evidence
16 presented, specifically Exhibit 502, showed that because
17 NCC distributed funds to a non-exempt corporation, the
18 NTCF, and not directly to individuals, the recipient
19 names and addresses were not required by the IRS.
20 The testimony of Raya Tahan confirmed
21 that NCC was not required by any IRS regulations to have
22 the names and addresses of the recipients in Israel.
23 The evidence has shown the defendants
24 intentionally misstated the amount raised by Marcus in
25 the newsletters in order to assert he had used the
[*1 HW note: According to the court exhibits, the following requests had been made to Uri for documentation, before NCC's April 2003 newsletter reported this impasse:
Feb. 25,03 (from defendant Sherri Wyner - exhibits nos. 492 and 77)
Feb. 26,03 (from defendant Lin Pyles - nos. 78 and 93)
Mar. 4,03 (from defendant Tom Mercer - no. 110)
Mar. 18,03 (from defendant Tom Mercer, appealing to NTCF board in Israel - no. 18)
All but one of these were documents provided by the plaintiffs, who denied their existence.]
00013
1 majority of funds for personal gain.
2 The evidence presented, specifically
3 Exhibit 110, showed that defendants required they be
4 involved in the application process concerning who funds
5 would go to in Israel, not simply verification that
6 funds had been used in Israel.
7 The evidence has shown the defendants
8 made false statements about the FBI and IRS.
9 Exhibit 262 showed that the FBI notified the defendants
10 that the records they presented were insufficient to
11 initiate an investigation by the FBI; that is not what
12 the defense said in their newsletters. The defendants
13 also made false statements about the fact that the FBI
14 said it would forward the checks to the IRS for whatever
15 action the IRS deemed appropriate. That was misstated
16 in the newsletter.
17 The Court allowed both Mercer and Sherer
18 to testify concerning alleged statements made by the FBI
19 agent, which statements were clearly not admissible and
20 which violated the Court's pretrial order. Plaintiffs
21 were certainly permitted to question defendants
22 concerning the content of Exhibit 462 [sic, 262] and how it related
23 to what the defendants put in the newsletter without
24 opening the door for the improper statements by the
25 defendants and their witnesses.00014
1 The testimony in exhibits presented and
2 those which would have been presented have and would
3 show the defendants had full knowledge of the two
4 $10,000 checks referenced in the June newsletter. The
5 defendants lied when they said in the June newsletter
6 that they uncovered the two checks. All of the
7 information concerning the checks was known to Sherri
8 Wyner in January 2003 and by Tom Mercer no later than
9 March 7, 2003, as shown by Exhibit 153.
10 The bank statement, Exhibit 442, that the
11 defendants claimed was Marcus' personal account was in
12 the defendant's hands in February 2003 and the online
13 bank statement, Exhibit 360, which showed the checks to
14 Uri Marcus was dated February 23, 2003.
15 We heard the testimony of [name withheld],
16 the NTCF CPA in Israel. He established the account
17 shown on Exhibit 442 was the same account that he had
18 listed in Israel as the NTCF account.
19 We heard Steve Sherer testify that
20 certain IRS regulations were violated that was
21 referenced in the June newsletter, however, he could not
22 cite those alleged regulations then and he could not
23 cite them during his testimony. Nothing has been
24 presented to show any IRS regulations were violated at
25 the time.00015
1 Raya Tahan testified, on the other hand,
2 that the statements made in the June newsletter
3 concerning the alleged regulations and the remuneration
4 to Uri Marcus were untrue. Even if the Court determines
5 the statements in the newsletters are not defamatory,
6 they still constitute a claim for false light, invasion
7 of privacy. Under such a claim, even the publication of
8 true information that creates a false implication about
9 the plaintiff is actionable. That's the Godby case that
10 was cited by Mr. Delozier on the derivative counts. The
11 evidence showed that the defendants were aware prior to
12 the March 3 meeting who the directors and officers were.
13 Exhibit 49 is evident of this.
14 Evidence was also presented showing
15 Morris Ruddick should have been permitted to vote at the
16 March 2nd meeting. In addition, evidence would have
17 confirmed this, such as the testimony of [name
18 withheld], who would have testified that the Ruddick
19 resignation was discussed February 3, 2003, and resolved
20 at that time, that there was no resignation.
21 The Court has made several references off
22 the record that it previously served on the board of a
23 non-profit and it is clear from the Court's statements
24 that its view of this case may be clouded by that fact.
25 The Court chastised expert witness Raya00016
1 Tahan for her testimony in relation to Exhibits 444 and
2 445, but Rule 704 permits her testimony on such an
3 issue. The Court is giving weight and authority to the
4 IRS letter, Exhibit 444 and 445, that is not warranted
5 by the evidence nor permissible on the basis of the
6 evidence presented. The IRS letter, 3609, and its
7 addenda is an informational and has no binding authority
8 on IRS according to Procedure 2006-4.
9 Raya Tahan is permitted by the rules of
10 evidence to testify to her disagreement to a provisional
11 contained in a form letter from the IRS. Plaintiffs
12 believe that the evidence presented in this matter and
13 the evidence they have been precluded from presenting
14 establishes that there was no basis for judgment as a
15 matter of law in this action. Thank you.
16 THE COURT: Thank you. Counsel, what
17 exhibits did you reference from Ms. Tahan?
18 MR. LARSON: Just her testimony.
19 THE COURT: You said there were exhibits.
20 MR. LARSON: I'm sorry. 444 and 445,
21 which were the letter, 3609, from the IRS and the
22 addenda to that letter.
23 THE COURT: Thank you. Counsel, would
24 you like to be heard in reply?
25 MR. DELOZIER: I have only three points.00017
1 The testimony by almost everyone was the database, there
2 was -- was not provided. Mr. Marcus refused. The
3 database that the defendants eventually were able to
4 obtain was an old -- was also the testimony was an old
5 one. The testimony was that there were numerous
6 requests. When asked how many, Mr. Mercer couldn't
7 remember how many, but there were several oral ones,
8 according to him. And, obviously, there was a response
9 from Mr. Marcus to Mr. Mercer's requests in February and
10 then another request in writing later on in the month of
11 February.
12 The sole issue in this case on the IRS
13 really was these people -- the defendants, the board
14 members, had no control over the funds. Mr. Marcus was
15 the only one that was moving them, or his wife, out of
16 the NCC account. These people had no idea where the
17 money was going and when they -- the issue of names and
18 addresses and so forth was simply an attempt -- although
19 we believe it's required as well -- really, it was an
20 attempt to control the funds.
21 THE COURT: Thank you. First, with
22 respect to the testimony of Ms. Tahan, the Court found
23 her non-credible. The Court found her misstating the
24 law. The Court found her willing to change her
25 testimony and the Court contemplated whether she should00018
1 be referred to the State Bar for her demeanor in court
2 and her lack of candor to the Court in explaining her
3 opinions.
4 The Court notes that prior service on a
5 board -- non-profit board was not offered to suggest
6 that there's an opinion that weighs in. It was offered
7 to suggest that there is -- it's not just some
8 out-there, blind, false statement that board members
9 have fiduciary obligations. It was a personal
10 appreciation that they do have fiduciary obligations
11 made in response to comments by plaintiff's counsel that
12 this wasn't really a concern of theirs, that, basically,
13 they were violating federal law and I have provided
14 plaintiff's counsel with a copy of the International
15 Emergency Executive Powers Act, which has curiously not
16 been referenced this morning.
17 Mr. Marcus, when you do business, as a
18 non-profit in Israel, under current law after 9/11/2001,
19 it's as simple as this: If you can't verify where the
20 funds go, to the person or to the project, they can
21 seize all the assets and I know that you don't want that
22 for your corporation. You want to be able to help
23 people in Israel. That's the whole point of what you
24 are doing.
25 By the same token, the fact that they00019
1 haven't been arrested or shut down or seized by the IRS
2 doesn't mean that the defendants in this case have to
3 wait for disaster to strike to take some preventative
4 action when they know there's a requirement for full
5 accounting. They have to follow through with that.
6 You know, we always wish that you could
7 go back in time and help make things peaceable. There
8 was a time when all of you were on the same page,
9 helping many people, without question. Unfortunately,
10 things changed.
11 If I had been Mr. Sherer or Mr. Kraemer,
12 I would have dealt with the very real issue up front,
13 which is, Mr. Marcus, with a specific goal in mind
14 personally went around raising funds that went into NCC.
15 People relied on you being part of what happened with
16 their money when those funds are were raised. That's
17 not something that's dismissed lightly by the Court out
18 of hand. I understand your concerns. It's basically a
19 commitment you made to donors at the time they were
20 making donations that you would personally be involved
21 in the distribution of those funds.
22 Unfortunately, that wasn't the case and
23 probably what should have happened in March of 2003 was
24 an honest, frank exchange of information about what
25 should be done about that impasse. The fact that there00020
1 was a parting of ways and that there were funds that
2 were raised by you with a specific idea from the donors
3 that you would be primarily responsible for directing
4 those funds, and that's something if it had been
5 discussed in a diplomatic, candid, unheated way probably
6 would have resolved -- I would hope, because I respect
7 all the parties here -- probably would have resolved the
8 impasse that you found yourself in.
9 A lot of what you feel was dishonest, I
10 can completely appreciate. The fact that you got two
11 checks for $10,000 that you moved from one account to
12 another, that I'm positive if Mr. Cohen could find to
13 the penny or, more accurately, to the shekel that it
14 went to exactly the good causes that you worked so hard
15 for day in and day out. Unfortunately, there are
16 accounting rules that have to be followed and
17 notwithstanding your good motives and your good
18 intentions to people in Israel, that is a legitimate
19 concern that the board members -- even if you have great
20 motives, even if you can show after the fact that it was
21 spent, as I'm sure it was, on the poor in Israel -- that
22 doesn't allay their concerns and their problems of
23 having to deal with trying to avert disaster before it
24 strikes and both NRF and NCC would have been shut down
25 completely without compliance to the letter by the00021
1 federal government after 9/11/2001, if they felt there
2 wasn't sufficient documentation of where this was going
3 to the person or to the project.
4 And that's the -- I'll get a copy of --
5 if your counsel hasn't shared it with you, because I
6 think it's important for you to know that if you want to
7 continue doing this good work -- and I know Americans
8 are big-hearted people and that's a big base for you, I
9 want to make sure you are all on the same page about
10 what you need to have in place to keep your good work
11 going.
12 However, in looking at the communication
13 and listening to Mr. Sherer, I understand and I
14 appreciate your disagreement with the communications
15 that were made, the e-mails, the newsletters and things
16 like that and perhaps -- you know, we always think that
17 we're the wiser attorney to have been involved in it --
18 perhaps if someone else had been involved, a little more
19 diplomatic twist of words would have occurred, a little
20 more editing would have happened to explain in as
21 neutral a fashion as possible that they were acting as
22 board members, and it takes some skill and sometimes
23 time to remove yourself from the heated exchanges that
24 were going both ways and, unfortunately, it resulted in
25 letters that were factually accurate, but heated.00022
1 So I understand why you took it very
2 personally and I can't say that I would disagree that I
3 would take it personally, but I have to apply the law to
4 the facts in this case and the fact is that you are a
5 public figure for purposes of the communications that
6 are going to and from donors under the applicable case
7 law.
8 The other fact is that they are
9 privileged communications when they are talking to their
10 donors. They are also taking prudent steps -- although
11 I understand you feel that this was an attorney that you
12 shouldn't rely on and you have a pending bar complaint
13 on them -- but those are prudent steps when you have a
14 serious issue come up about tax exempt status of a
15 corporation, not only for NCC but also for NRF.
16 I had -- I had advised your attorney
17 earlier in the trial that I was probably going to let
18 this all go to the jury, even though I was certain that
19 there would be a defense verdict. I don't think that's
20 an appropriate exercise of my discretion. I think I
21 have to rule immediately if I feel there's insufficient
22 evidence to go to the jury.
23 I disagree with Mr. Delozier's argument
24 that there was no allegation of damage to your
25 reputation. I think there was evidence that your00023
1 reputation was damaged. I think you heard from donors
2 who were disappointed in the communication and thought
3 there was a better way that could have been communicated
4 and they candidly told you and they testified under oath
5 that they were, at best, disappointed with NCC and how
6 they handled this.
7 However, that doesn't make the
8 communications by NCC inaccurate or misleading. Again,
9 being the best diplomat is not the requirement of the
10 legal standard, it's "factually accurate" under the case
11 law, and the representations made are all reasonable
12 inferences, and a lot of your objections are not to
13 factual misrepresentations about you, but what you feel
14 are factual misrepresentations of their opinions,
15 because they had no reason to feel certain ways that
16 were reduced to writing.
17 For instance, your counsel discussed
18 whether they found issues disturbing. Okay. I
19 understand you feel -- and there's some merit to what
20 you are saying -- that they shouldn't have presented it
21 that it was as disturbing as they suggested. But the
22 communication isn't that you did something specifically
23 wrong, it's that they feel disturbed by what they
24 observed. That's not defamation. That's their opinion
25 about how they feel so I can't make that a basis for00024
1 defamation.
2 The repeated requests for information.
3 How repeated? More than one? We have evidence from you
4 and from them both that there was more than one request
5 for information. Now, it gets clouded and vague about
6 what information they're talking about, because there's
7 suggestion that there are newsletters that tell the good
8 things that have happened. That's not my understanding
9 and that wasn't the Board's understanding and that's
10 what governs here. It's their understanding of what
11 they are trying to communicate out to donors. Their
12 understanding is that they were asking you for the end
13 result, as well as donor base information, database
14 information. They wanted specific identification of the
15 people receiving it or the projects under the applicable
16 federal law. And that was before 9/11, that you had
17 those advisory letters and information from the IRS.
18 After 9/11, it's even more important, it's even more
19 important, and they were within their duty as board
20 members to express those concerns.
21 The Court has already ruled and put on
22 the record its findings for directed verdict on the
23 various counts for derivative action, but I don't want
24 to just say it out of hand like I didn't understand why
25 you brought the claim at all. I understand why you00025
1 brought the claim. There was an incongruity of raising
2 money with your personal assurance to donors,
3 Mr. Marcus, that you would oversee how the funds were
4 spent and that you felt you weren't being able to keep
5 your promise once you were removed from the board. I
6 understand that and I understand that frustration. That
7 is not a basis for overcoming a correct application of
8 the law to the facts in this case. And by the conduct
9 of the various executive officers and the board members,
10 it created that which normally would otherwise exist
11 under the bylaws or the applicable statutes and case law
12 about how board members and executive officers interact
13 and work with each other. By the conduct of the
14 parties, board members were allowing executive officers
15 to vote. That was what was in operation as of
16 March 2nd, 2003.
17 And I understand the clarification of who
18 was a board member and who was an executive officer made
19 by Mr. Sherer giving you concern after March 2nd, 2003,
20 about, "Well, what was the point of making that
21 delineation?" For purposes of your derivative actions,
22 none, because when executive officers act as board
23 members, that's the conduct -- the course of conduct
24 that ratifies that being acceptable to the corporation.
25 So the executive officers, under the conduct that led up00026
1 to that point, allowed the vote on March 2nd, 2003, to
2 take place the way it took place.
3 The Board's own statements of its
4 concerns -- again, goes to its opinions and subjective
5 concerns -- that you disagree that they had a reason to
6 be concerned is not something that allows you to survive
7 directed verdict.
8 The fact about the board resignation
9 member being unsure of him, that doesn't enure to the
10 detriment of you personally, that enures to the
11 detriment of any one of the NCC, to make representations
12 about the NCC board membership which they knew was
13 inaccurate. That doesn't go to personal defamation of
14 your character.
15 Documents that they received presented
16 disturbing issues. We've already covered that. That's
17 something that I believe they are allowed to give their
18 opinion, whether it's justified or not, that they are
19 disturbed and that was the focus of that statement.
20 The statement that you used majority of
21 funds and that -- that you raised funds and that the
22 majority of those funds went to your travel expenses, I
23 think you have confirmed that those were your travel
24 expenses and the suggestion was not that the amount was
25 mostly used up -- and, again, it's their efforts to00027
1 explain what they are trying to say. They are trying to
2 say, "If you want your money back, here's our problem."
3 There's other funds available and your
4 attorney pointed it out, but they are trying to earmark
5 dollars from a particular fund raising campaign so they
6 are giving their estimate of what it is and they are
7 giving their understanding of the expense related to the
8 fund raising. I don't find those to be inaccurate or
9 misleading. I find it to be what they were trying to
10 communicate about earmarking money that can be returned,
11 if they want it to be returned. And, again, I think
12 their communications, if I'm not mistaken, not only
13 indicated that they would be willing to return it, but
14 if they wanted -- they don't have any objection to it
15 ultimately going to charities or resources that you felt
16 were appropriate.
17 So with that in mind, I don't think there
18 was any placement of a false light. I think Mr. Sherer
19 accurately and completely explained what the interaction
20 with the Internal Revenue Service. I'm mindful of my
21 ruling. I had precluded it and we were going to revisit
22 the issue and then for trial strategies known only to
23 plaintiffs, the door was opened and the Court had no
24 option, really, but to reverse its ruling. [*2]
25 And mindful of that, the issue presented
[*2 HW notes: “Mr. Sherer accurately and completely explained” – NCC attorney Steve Sherer testified on the reasons for involving the FBI and IRS.
“I’m mindful of my ruling” – refers to Tom Mercer’s direct testimony, 11/may, explaining why the NCC newsletter included the information about the FBI (mentioned also in IF, p.452). Plaintiff attorney Larson objected and made a formal request to preclude this issue from testimony, and the judge so ruled.
“…for trial strategies known only to the plaintiffs, the door was opened and the Court had…to reverse its ruling” – Larson violated his own ban in Tom Mercer's cross-exam, so the preclusion was voided. For my eyewitness notes about this chain of events, see Appendix B, Fiction 4.
00028
1 at pretrial was the fact that there was an inability to
2 discover from the IRS agent the information that was
3 communicated [from/to the FBI]. Am I correct, Counsel?
4 MR. DELOZIER: Yes, your Honor.
5 THE COURT: And I agree that that's --
6 this is a truth-seeking process. In making that ruling,
7 I feel like unnecessarily hamstrung the defendants in
8 being able to explain exactly what they put in the
9 letter and why. And I don't feel that -- there probably
10 should have been a reconsideration requested by the
11 defendants that it wasn't being offered to prove the
12 truth of the matter asserted by the IRS agent, but it
13 was being offered to prove or explain the communications
14 they made in e-mails and newsletters and other things.
15 So my ruling precluding it was a correct statement of
16 what to do with a disclosure issue. It was an incorrect
17 statement of the applicable rules of evidence that
18 should govern what the defendants could testify to in
19 this case. [*3]
20 Accordingly, the Court directs the
21 verdict on each and every count of the plaintiff's
22 second amended complaint. The Court has already made
23 its findings -- let me go through them as follows:
24 As to Count 1, breach of fiduciary duty.
25 That derivative action had already been ruled on by the
[*3 HW note: “I feel like I unnecessarily hamstrung the defendants…rules of evidence that should govern what the defendants could testify to in this case.” – plaintiff attorney Larson had brought the FBI issue into Mercer’s testimony but objected to it in Sherer’s testimony. In his closing statement (see this document, p.13), Larson argues that the plaintiffs could ignore the FBI disclosure ban, but the defendants were bound by it. I understand Ryan to be rejecting that argument here as a double standard imposed on the rules of evidence.]
00029
1 Court on May 11th, 2006, and the Court incorporates its
2 analysis in rendering directed verdict as to Count 1.
3 Likewise, the Court applies the same
4 analysis it gave on May 11th, 2006, to Count 2,
5 declaratory judgment of derivative actions.
6 Count 3, conversion, diversion and
7 accounting, a derivative action.
8 Count 4, unjust enrichment, a derivative
9 action.
10 Count 5, fraud and misrepresentation, a
11 derivative action.
12 As to Counts 6 and 7, the Court finds
13 Mr. Marcus is a public figure for the purposes of this
14 trial. Court finds that there was no malice on the part
15 of the defendants in making the communications that is
16 the subject of the defamation and false light claim.
17 The plaintiffs have not shown actual malice nor have
18 they known shown a basis for punitive damages that had
19 been requested. The communications made were
20 privileged. The defendants, as board members, were
21 obligated to make communications of their concerns.
22 Although, the Court does understand and
23 appreciate Mr. Marcus' opinions that a lot of emotion
24 was built into the communications that were made that,
25 in retrospect, could have been removed and maybe should00030
1 have been on both ends. I'm sure that the parties agree
2 with me on that when they hear e-mails talking about
3 grenades, guns, weapons, murder [*4] and things like that and
4 the Court is just incredulous at how far removed that is
5 from the good work that you all do and the Court hopes
6 you keep doing day in and day out.
7 Again, Mr. Larson, I don't like the
8 feeling that I'm talking out both sides of my mouth and
9 I want to tell you I didn't -- I wasn't just being
10 insincere when I said I think I'm going to let it go to
11 the jury. I thought about it and I said, that's really
12 an abandonment of my judicial responsibility and
13 reasonable minds can disagree. The Court of Appeals
14 reverses superior court judges every day, but I have to
15 apply the law to the facts and this is the appropriate
16 finding on my part and I thought it would be a waste of
17 the Court's time and, more importantly, the attorneys'
18 time and the jury's time to go through that which I
19 should rule on. I mean, if the jury had rendered some
20 kind of verdict, I would have been hard pressed under
21 the facts presented not to consider seriously a motion
22 for judgment notwithstanding the verdict if, in some
23 unlikely event, there was a verdict rendered based on
24 the record presented.
25 So with that in mind, I apologize to you
[*4 HW note: "grenades" etc. - quoting from Uri’s reply to Tom Mercer’s email of feb/03; see Appendix C, Source 2.]
00031
1 that in my efforts to be candid and let you know what's
2 going on that I might have disappointed you in
3 suggesting that this was definitely going to go to the
4 jury. That was an error on my part. That is something
5 you wait and see until the motion is made and I'm a
6 little wiser for the experience now. And, again, I
7 apologize if that caused you any consternation or put a
8 little doubt into the judicial process by me saying one
9 thing and then reversing myself the following day.
10 MR. LARSON: I appreciate your
11 explanation.
12 THE COURT: Okay. As to the
13 counterclaims, there's a request for status conference
14 on the bifurcated counterclaims. Would you like to come
15 back in August?
16 MR. DELOZIER: That's probably okay.
17 THE COURT: Okay. Counsel, do you have a
18 preference of what we will do in advising the jury?
19 MR. DELOZIER: I'm sorry?
20 THE COURT: Do you have a preference of
21 what we advise the jury?
22 MR. DELOZIER: No, sir, I don't.
23 THE COURT: Mr. Larson? Does either side
24 wish to discuss the case with the jury at all? It's up
25 to you.00032
1 MR. LARSON: I would like the
2 opportunity, if they want to make themselves available.
3 THE COURT: Sure.
4 MR. DELOZIER: Yes.
5 THE COURT: August 14th at 9:15 a.m.
6 And, Counsel, since we'll be talking about calendaring,
7 trial management conference and a trial date, you can
8 appear telephonically, if you like.
9 MR. DELOZIER: Thank you. I appreciate
10 it.
11 THE COURT: And we'll continue the
12 remaining portion of the trial on the inactive calendar
13 to the next status conference.
14 MR. DELOZIER: Your Honor, one question:
15 I did not address attorney's fees, but I assume that
16 it's appropriate to submit the application.
17 THE COURT: Sure.
18 MR. DELOZIER: And do you want us to
19 submit something to you as far as the orders today or
20 are you going to sign the minute entry?
21 THE COURT: Well, since it's a
22 counterclaim -- let me think about that.
23 MR. DELOZIER: Okay.
24 THE COURT: But I'm going to issue a
25 minute entry, since there's counterclaims, and maybe00033
1 Mr. Larson would like to avoid 54(b) language, because
2 it's just conceptually easier to keep a case together.
3 MR. DELOZIER: I understand.
4 THE COURT: And I don't want to compound
5 Mr. Larson's problems in having to defend both a trial
6 and appeal at the same time or bring an appeal because
7 of some deadline I imposed by 54(b) language.
8 MR. DELOZIER: That's one of the concerns
9 I had and one of the reasons we asked for a status
10 conference in about 90 days is we wanted to permit the
11 appeal portion time to let them decide if they are going
12 to do that.
13 THE COURT: Okay.
14 MR. DELOZIER: So I was specifically
15 asking for 90 days for that reason, because we either
16 want to know if they are going to appeal or not going to
17 appeal.
18 THE COURT: Let's do this: You have that
19 discussion about what you want to do, with everything,
20 and if -- let's say by June 30th, defendants shall make
21 their request, if they are requesting it, for 54(b)
22 language in the minute entry and that will give -- you
23 know, the written request and that will give Mr. Larson
24 enough time to respond. If he wants oral argument on
25 it, we can do that and then maybe even take it up at the00034
1 status conference.
2 MR. DELOZIER: Very good.
3 THE COURT: Okay. Thank you, Counsel.
4 MR. DELOZIER: Thank you, your Honor.
5 (PROCEEDINGS HELD IN OPEN COURT,
6 IN THE PRESENCE OF THE JURY)
7 THE COURT: We're back on the record in
8 CV2003-016623. Let the record reflect the presence of
9 parties, counsel and the jury.
10 Ladies and gentlemen, after motions by
11 the attorneys, I have directed verdict in favor of the
12 defendants. Part of your job in making that possible
13 was being available to sit as jurors and listen to the
14 evidence in the case. You will not have to decide any
15 facts in this case. I have ruled as a matter of law on
16 some certain issues raised by the defendants -- I'd be
17 happy to explain that to you -- and I want you to
18 understand that but for you being here, there would have
19 been no ability to resolve these issues being put.
20 In this country, it's a great system
21 where you don't get a gun or a knife or there are no
22 blood feuds; you sit down and tell your side of the
23 story to judges of fact, who come from all over and
24 listen.
25 I almost always want things to go to the00035
1 jury for a full and final consideration, but as I told
2 you, I'm the judge of the law, and sometimes that has to
3 trump consideration of the facts. And so in applying
4 the law, I have directed verdict on the counts and I can
5 explain that to you, but I wouldn't have the ability to
6 develop all the evidence until I sat down and listened
7 to it with you and understood the arguments of the
8 attorneys that were being made before trial.
9 So I thank you for your service, it's
10 been invaluable, and if you would like, the attorneys
11 would be happy to talk to you about the case, if you
12 want to talk to them, and I would like to meet with you
13 and thank you in person. But until then, you are
14 discharged from any further service. You don't have to
15 report back to the jury commission. This is your jury
16 trial for the year, if you like. Thank you everybody,
17 and we stand in recess.
18
Source 8: An orderly explanation of the charges in the lawsuit (mentioned above, p.28-29)
Background: These are my own understandings derived from on-line legal dictionaries. They are offered in order to make the "legalese" more accessible to laypeople and explain how they applied to this legal conflict. Some of them are self-explanatory.
Counts 1 through 5, all involving corporate injury to NCC, were dismissed by the Judge on 11/may, partway through the trial (above transcript, p.28-29).
For the rest of the trial, plaintiffs attempted to prove the remaining (personal injury) charges:
The judge's ruling on these charges (p.29):
As to Counts 6 and 7, the Court finds Mr. Marcus is a public figure for the purposes of this trial. Court finds that there was no malice on the part of the defendants in making the communications that is the subject of the defamation and false light claim.
The plaintiffs have not shown actual malice nor have they known shown a basis for punitive damages* that had been requested. The communications made were privileged**.
* "Punitive damages" - Uri had asked during his testimony to be awarded approx. $437,000 in damages. He said he believed he was actually entitled to "over $3 million".
** "Privileged communications" - The defendants, as board members, were obligated to communicate their concerns to fulfill their fiduciary duty to the donors.
The Countercharges against the plaintiff:
According to the defense lawyer's press release (below), the NCC board charged Mr. Marcus with “breach of fiduciary duty”, “conversion” and “defamation”. See Counts 1/3/6 above for legal explanations.
As the author of IF notes (p.487), this counter-suit was dropped voluntarily by the NCC board.
Source 9: Defense attorney’s press release, may/2006
Background: The following statement was distributed by attorney for the defendants G.D. DeLozier, shortly after the trial ended. It was presented to Messianic Times and other Messianic forums for publication, but to my knowledge it never appeared anywhere except on the Restorers of Zion website.
Uri Marcus and Kay McLean sued the NCC board members, asserting that he had been wrongfully removed as President of NCC, and seeking to recover money donated to NCC. He also claimed that NCC had converted (stolen) funds that did not belong to it. After three weeks of trial, the Judge denied these claims, and took these claims away from the jury, finding that there was no evidence and that Uri Marcus had not proven his case.
Uri also sued the NCC board members personally for defamation. Before trial, the defamation claims were limited to two NCC newsletters sent in 2003. After Uri put on all of his evidence, and after NCC President Tom Mercer testified for the NCC Board members, the Judge again found that Uri had not proven his case and entered judgment against him on the defamation claim, finding for the NCC board members.
The NCC Board members, on behalf of NCC and as individuals, had counterclaimed against Uri. They asserted that Uri had breached his fiduciary duty to NCC by starting a competing corporation, Nehemiah Restoration Fund. Uri's own evidence demonstrated that this was true. NCC also sued for conversion of funds and assets of NCC, such as the donor database. Last, the individual board members counterclaimed for defamation.
Judge Ryan postponed the trial of the NCC Board's counterclaim, and is to set a hearing in June to find a court date, probably in August. In the meantime, the Judge requested that the NCC Board submit an application for attorney's fees, which if granted in full would give NCC and its Board members a judgment in excess of $150,000 for attorney's fees against Marcus and Kay McLean. The Board members have paid for all these fees personally, and have not used any donor money to fight the litigation.
Source 10: Trial Court Minute Entry awarding judgment to defendants, 22/aug/06 (relevant excerpt)
Background: The above-mentioned "application" from the defendants was answered by awarding half the requested amount, a bit over $87,000 as noted in IF (p.479). The decision is accompanied here by the court’s observation that Uri was responsible for the organizational tension.
The Court has taken the Motion for Award of Attorney’s Fees and Reasonable Expenses under advisement, has reviewed said motion and Plaintiffs’ Response.
[…..]
What was clear was that neither side could claim, in retrospect, they had chosen their words (in communicating with each other and with the donating public) as prudently as they could have. Both sides failed to exercise a reserved manner in addressing the situation. Neither side cautiously exercised fiduciary responsibility during the management of the meetings. Neither side dealt responsibly with the stated concerns of the other.However, the downward spiral in the relationship toward litigation was prompted almost exclusively by Mr. Marcus.
Mr. Marcus disregarded the serious potential consequences of failing to provide full documentation of his charitable activities in Israel, in advance of any potential audit. He has moved large amounts of money, thousands of dollars, into his own accounts, without board approval. He refused to provide the most basic records to verify the overseas charitable expenditures to the board members’ satisfaction. None of what the board members reported to the existing donor base was defamatory.
The board members acted in accordance with procedures Mr. Marcus had been perfectly happy to follow, except when the vote did not go his way. Failing to get your way is not a valid basis for filing a derivative action.
The Court further finds that the derivative action is separate from the defamation action.
IT IS ORDERED awarding Defendants’ attorney’s fees. No later than September 5, 2006.
Postscript: Regarding this judgment, the statement by the author (p.487), “…for which I make monthly payments, to this day”, is outdated information. At some point after the book was published, all defendants released Uri from this obligation. The Mercers specifically released him at the start of the Shmitta or Sabbatical year (sep/2014), in honor of the Torah command in Deut.15:1-2 to release debtors.
Source 11: NTCF newsletter from Uri Marcus, aug/2006 (emphasis in original), soliciting donations for the “NTCF Appeal Fund”.
Background: Uri publishes here the same disinformation about the trial that would appear much later in IF. On the other hand, the accusation of religious bias on the part of the trial judge, so prevalent in IF, is noticeably absent. Likewise missing is any mention of the theological context which, according to the book, had fueled the mutinies in both his organizations.
Grace and Shalom to you from Jerusalem;
Israel, as you know, has been under attack by Hizbullah’s rockets from the north and from Kassam missiles from Aza (Gaza) in the south. Many Messianic families live or work in the targeted areas, and are being affected by the war. I’m afraid that we only anticipate that requests for assistance will increase considerably during the coming weeks and months, in light of the communications that have already come into the Fund since the outbreak of the war. Financial difficulties have been encountered by everyone, but particularly by those in the north, whose small businesses and places of work have been adversely affected, who have not been paid, and have not gone to work, having spent substantially all their time of late, in bomb shelters. This is a time when we really need our faithful friends to stand by us in practical ways.
Moreover, as if we didn’t have enough problems from without, division within the Body are demanding a heavy toll as well. “Friendly fire,” well intentioned as it may be, is always just as untimely and deadly as missiles coming from recognized enemies. This phenomenon, to our regret, is the reason for this letter.
Background
The NTCF story, as many of you know, began in 1987, when we first set out to find a way to assist the Messianic community in Israel. For almost 20 years, our goals have been consistently met in this regard, but the road along the way, has not always been so smooth. More recently in fact, we reached and [sic] impasse, which threatens to bring the ministry to a halt, unless we get a very much needed infusion of funds. Our backs are against the wall. I am not very good at requesting help for myself, nor am I particularly inclined to make personal appeals, however, the bottom line is that my wife Sharon and I need help personally, and more importantly, so does the Nehemiah Fund. The balance of this letter explains why.
A little over three years ago, a faction within the Nehemiah Fund’s U.S. board apparently felt they could do a better job of running the Fund than I could. There were, at the time, six persons involved with the U.S. entity of the Fund. Three of those persons managed to assume control of that organization, along with its bank accounts and NTCF’s database, and I was removed as its President. These individuals then sent out letters to our list of U.S. supporters that contained, among other contained, [sic] among other things, unsubstantiated and blatantly false claims about IRS violations and FBI investigations. At the same time, these individuals aligned themselves with a new organization in Israel, that was founded by a disgruntled former board member of Israel Fund [sic]. Three of the four persons involved with this new alliance had been previously serving with the NTCF and its U.S. entity for only seven months, when the turbulence began. Yet the consequences of that alliance, vis-?-vis the NTCF, and Sharon and I personally, remain to this day.
As a result of the foregoing, our U.S. fund-raising efforts to help the believers in the Land in 2003 and 2004 yielded 60% to 70% less income for the Fund than what was raised on the average during previous years. Since then, despite our best efforts in damage control, we have, for the most part, seen only modest contributions, restored, for which we are nevertheless grateful. However, it remains clear that we still have a long road of recovery before us….
After the events of 2003 had unfolded, I sought wisdom, through much prayer and counsel, on how to proceed. It seemed obvious that steps needed to be taken that had the potential of undoing the damage caused to the U.S. entity and to my personal reputation as a result of the actions of the individuals referred to above. At the outset, efforts were made to approach our former colleagues requesting that they participate in Christian reconciliation and arbitration in order to resolve the issues in dispute. All of our requests were flatly turned down.
Trials & Tribulations
So, with a formidable sense of duty and responsibility towards the Fund’s donors at the forefront of or [sic] thoughts, together with the Board of the Fund behind us in this matter, I filed legal action against our former colleagues, in two separate complaints; one in a representative capacity on behalf of the U.S. entity and the other for defamation of character, for the damage done to my personal reputation. Notwithstanding the filing of the lawsuits, two additional attempts to resolve the matters by binding Christian arbitration were pursued. Once again, these efforts were turned down by the other side. It should be pointed out that these two lawsuits were financed, for the most part, with personal funds. Sharon and I mortgaged our home to pay for the legal costs and expenses involved in trying to recover from the actions of the defendants. However, after protracted legal proceedings, by the time we are arrived [sic] at the date trial was set to begin, Sharon and I had reached the point of exhausting our financial resources. At that point, it was no longer possible to resolve the matters out of the court and still achieve any of the purposes for which lawsuits were filed. And so, our ten-day jury trial began early in May, 2006.
Afterwards came the biggest blow. On the last day of our two-week trial the trial judge, who had only three months experience in that role, ruled that the jury would NOT BE ALLOWED to decide the case, but took upon himself that which should have been in the jury’s sole providence. In this decision, the judge- not the jury- ruled that the three people who remained with the U.S. entity had, in March 2003 enough votes to make the decisions that were made and, therefore, dismissed the derivative lawsuit that had been filed on behalf of that organization. He also reversed a prior ruling that he had made that I was NOT a “public figure” and ended up ruling at the last minute that I WAS a “public figure.” Since it is necessary for a public figure to prove “malice” in the face of defamation, the judge ruled that the statements made against me by the defendants could stand, owing to hs [sic] further ruling that, I had not proven malice. Consequently, he summarily dismissed the defamation suit that I had filed.
A Bright Appeal
The legal counsel that we received and which we believe is correct, was that the judge’s decision in this regard was wrong to the point that it could be reversed on appeal by a higher court. In fact, we were informed that the judge made numerous statements and decisions during the course of the trial that we believe were unduly biased against us, and unsupported by law. Numerous legal experts, most of them Believers, upon hearing what took place, all concluded and [sic] what we had experienced in the courtroom should never have occurred. They all encouraged us to appeal the judgment saying that there is a good probability that the appellate court would rule in our favor and reverse the trial judge’s rulings. More importantly, however, we realized that if we DO NOT take this matter to the appellate level, the defendants in the case can, and in all likelihood will, enforce their judgment in Israel, and force the sale of our apartment in order to pay the judgment rendered in their favor.
Forks in the Road
This, in short, is what lies before us at this juncture. We are facing a very difficult decision indeed. We would need at least another $25,000, which we simply do not have, before we can proceed with the appeal. We feel trapped, hemmed in on all sides, in our very own Red-Sea scenario, with no means of escape to the left or to the right. We can’t even back out at this point, even thought [sic] the thought of another trial after a successful appeal is overwhelming. Moving forward into the sea, towards an appeal, is the only “pathway” open, as it not only offers to save our home, but also appears to be the only way to insure the continued future operations of the Nehemiah Fund.
So, here we stand. Sharon and I are personally in debt for $108,000 in legal fees, NOT including any legal fees, that may be awarded to our adversaries by the court, figure [sic] that wont [sic] even be published by the court, until mid- August. The choices before us are to resign from the Nehemiah Fund, and go into bankruptcy, losing our home in the process—or to believe that the L-RD is going to intervene in this untenable situation and restore the Fund to the vibrancy it enjoyed prior to maneuverings of our former colleagues and friends, which began in March, 2003. We need to make a decision on or before the 31st of August,2006. Time is of the essence.
“How much justice can you afford, Mr. Jones?”
There is no doubt that if I could turn the clock back, there are things I would have done differently, but that is not possible. Sharon and I can only proceed by doing what we and our Board believe is right in the sight of the L-RD now. Yet we are beyond what we can do on our own. We need help… serious help.
I appreciate the confidence you have demonstrated in us in the past, as well as your sharing the vision and goals of the Fund, which we have built up together since 1987, to become the most significant and largest loan and grant provider of all the Messianic organizations within Israel to this day. With G-d’s help, we can continue assisting the needy as we have been, notwithstanding the pressures and difficulties caused by the last three years of litigation. Needless to say, your friendship and prayers mean a lot to us, and with that in mind, I humbly ask you to consider any way that you might be willing to help us through this crisis. Our immediate needs are as follows.
- $25,000 to help cover the cost for the appeal process;
- $15,000 monthly to keep the Fund financially healthy and able to do its job;
- $108,000 to help pay off our present debt through May, 2006, in connection with the litigation.
We recognize that this is a lot of money. We are hesitant to ask for help with personal
debt, even though it’s a direct result of my work with the Fund. But we don’t know what else to do. Perhaps some may be able to contribute a little; perhaps some can do more. Any help you could provide in this situation, would be greatly appreciated.Curtains Please?
Sharon and I have devoted 19 years of our lives to serving the Messianic community in Israel and building up the Nehemiah Fund, and in the process, have assisted over 1,000 needy families in the Land, in an amount just shy of two million dollars. We have kept the Fund alive and functioning during the past three years despite all of the difficulties mentioned above. But now, we are the ones in need.
Thank you for your continuing concerns “especially for those who belong to the household of faith” here in the Land, and for the practical support you have faithfully been rendering in Yeshua’s name, and especially now. May the G-d of Israel reward your kindness, for good, and for blessing, through Yeshua and Messiah, Amen!
If you have any questions, or have confusion concerning the issues raised in this letter, please do not hesitate to contact either Kay McLean in Canada (phone no. deleted ) or myself in Jerusalem (phone no. deleted ). All gifts to assist us in this matter can be sent to the Nehemiah Fund, as before. Only please designate your gift as “NCTF Appeal Fund.”
With warm appreciation,
Uri & Sharon Marcus
Jerusalem
Postscript: A specific response is needed to the distressing prediction reported above (paragraph 9), that Uri’s legal victims “in all likelihood will enforce their judgment in Israel, and force the sale of our apartment in order to pay the judgment rendered in their favor.” This alarm about “losing our home” (paragraph 11) was groundless for two reasons:
(1) As a confidant of the defendants, I can say with certainty that they never even thought, much less threatened, to turn the Marcuses out of their home! This was proven true when the judgment was upheld in the Appeal Court and they made no such move. On the contrary, Uri’s request (3/nov/08) to make modest monthly payments of $200 was immediately accepted. Even when this was later reduced to $10/month, no objections or threats were made. Finally (see Source 10, postscript), they forgave him the debt altogether.
(2) If Uri had already mortgaged his home “to pay for the legal costs” of the 2006 trial (paragraph 7), it was in any case owned by an Israeli bank, and could not be sold to satisfy judgment creditors.
Source 12: Appeal Court Decision, apr/2008 (excerpts). The entire Appeal Court Decision (38 pages) can be provided on request. NOTE: Besides providing a standard by which to evaluate related claims in IF, the Court's clear explanations are valuable in their own right for defining the legal duties of a non-profit board.
Background: This Decision rejected an appeal on the derivative actions, affirming the “estoppel” cited by the trial court for rendering a directed verdict. In simple terms, this principle prevents someone from changing the rules after previously taking a legal position, accepting a certain state of affairs, or agreeing to a decision. In this case, the trial court had prevented Uri from changing NCC procedures after the fact. The reference to this attempt in the Minute Entry (see Appendix C, Source 10) is a good illustration of "estoppel":
The board members acted in accordance with procedures Mr. Marcus had been perfectly happy to follow, except when the vote did not go his way.
The Appeal Court then meticulously responded to the remaining appeal of personal injury, which came down to four objections: personal and judicial bias by the trial court, improper use of directed verdict, erroneous interpretation of IRS requirements, and the legal standards for defamation and "public figure" wrongly applied. I have reproduced excerpts of all four responses, showing the page and paragraph [P] number.
[p.18, “personal bias” of court based on personal experience as a board member; see IF, p.475-76]
P35 As a preliminary matter, members of a non-profit organization have the same rights and obligations as other board members, including fiduciary duties…. Judges are presumed to know the law and apply it in the course of proceedings. A factual statement of the law is not a violation of the Judicial Canons.
P36 …The judge’s comments were based on his knowledge of the law and experience as a member of a non-profit organization…. [The Judicial Canons do] not require judges to check their life experiences and knowledge at the door. Therefore, we find no error in the comments made by the trial judge.
[p.21-22, “personal bias” of court based on reference to terrorist organizations; see IF, p.462-64]
P42 …The trial court warned that the ramifications of not having verification and documentation of distributions would not only result in the loss of their 501(c)(3) status but could also result in “being targeted as a terrorist organization.” …In discussing the testimony [of Ms. Tahan], the trial court addressed Marcus stating:
“I have already talked…about the fact that there was a new public policy concerning how [information] is reported from domestic to foreign, I didn’t mean to suggest, and I apologize that that suggestion was made, that there is anything remotely resembling terrorist organizations….”
The statements were made concerning the scrutiny of non-profit organizations after the September 11 attacks, not the trial court’s belief that Marcus was supporting terrorism.
[p.23, “judicial bias” against expert witness Raya Tahan, see IF, p.465-66]
P44 The court correctly concluded that Ms. Tahan lacked credibility, was not candid with the court and repeatedly changed her testimony. Moreover, the court properly found that Ms. Tahan misinterpreted the IRS letters and regulations because the regulations and the letter were clear on their face. Accordingly, the comments were not improper and not an indication of bias.
[p.26-27, “Personal Claims”, injury from improper directed verdict and from bias against expert witness; see IF, p.465-66, 468-72]
P52 The opening brief impliedly [sic] argues that the trial court erred in directing a verdict on the two personal claims by relying on the requirements of the IEEPA and the IRS regulations. We disagree. As discussed in the judicial bias section, the court did not direct the verdict based on the IEEPA. Second, the trial court properly interpreted the IRS letter which expressly requested “names and addresses of the ultimate recipients and the project for which the funds were used, to demonstrate that all of its assets were used to further its exempt purpose.” This is not a mistaken interpretation of what the IRS required. The letter was clear on its face and did not require Ms. Tahan’s “expert interpretation”.[10] In any event, as discussed below, the directed verdict as to the personal claims was appropriate because the trial court properly found the statements in the newsletters were true and qualifiedly privileged.
-----------
[10] Appellants claim that the trial court treated Ms. Tahan “with complete contempt before the Jury.” This assertion is not supported by the record as the statements cited were made outside the presence of the jury and Appellants have not provided support that the statements were improvidently made.
[p.29, “Legal standard for defamation”, error in not recognizing evidence of defamation; see IF, p.452]
P56 In an action for defamation, truth is a defense…. In this case the trial court properly found that although the NCC newsletters were heated, they were factually accurate.
P57 Appellants’ presentation of the evidence did not establish that the statements made in the newsletters were false. The newsletters reflected several issues which presented legal ramifications to donors and NCC members. First, NCC had a letter from the IRS requesting specific information about the charitable donations made by the NCC including the purpose, the recipient and the amount provided. When requested, Marcus refused to turn over the NCC database which purportedly contained the requisite information. The IRS letter indicated that if a response to the requested information was not supplied, “the Internal Revenue Service will treat your organization as a taxable entity.” As a taxable entity, donations would not be eligible for a tax deduction. As a result, this would affect donors and was of concern to the board members.
P58 Second, NCC became aware of two $10,000 checks which Marcus had deposited in his personal account. The fact that the June newsletter told donors that Marcus had deposited two $10,000 checks in his personal account was supported by the record and admitted to by Marcus. The implication that Marcus kept the money for himself may have existed, but that was not a statement made by Appellees. When the board discovered this fact they contacted the FBI and the matter was referred to the Criminal Investigation Division of the IRS. Referral of activity involving funds previously belonging to NCC to authorities is certainly not defamatory and is of concern not only to the board, but also to donors whose money could have been involved in the activity.
P59 Although the outcome of the IRS involvement and Marcus’ failure to turn over records did not result in NCC’s loss of tax-exempt status, the possibility was a reality to Appellees. We do not find indications to the contrary or that the trial court erred in its ruling.
[p.31-32, “Public Figure”, wrong application of this status to Appellant Marcus; see IF, p.472-74]
P61 At trial, Marcus testified that since 1994 he had taken hundreds of trips to countries around the world in an effort to raise funds to help Messianic Jews in Israel. On these trips Marcus spoke to churches and other organizations concerning Messianic Jews. Marcus clearly undertook the cause because he believed it was as an important issue which needed to be addressed. His speaking engagements and his extensive fundraising indicate that he injected himself into the matter. The alleged defamatory statements were made concerning Marcus’ actions in fundraising for NCC, actions which he undertook with vigor, in the public eye, around the world. As a result, we do not find that the trial court’s finding that Marcus was a public figure was in error. [12]
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[12] Even if the trial court erred in finding that Marcus was a public figure, the statements Marcus claims were defamatory were found to be true. Because truth is a defense to defamation, the public figure finding, even if error, would not be necessary to find that a directed verdict was proper.P62 …The record does not indicate that Appellee’s statements in the newsletters were false, much less that tkey knew the statements were false. The trial court’s determination that the statements were substantially true also belies this finding.
[p.33 -34, “Privilege”, wrongful exemption of Appellees as privileged, and error in not recognizing malice; see IF, p.472-74]
P65 In its findings when entering the directed verdict, the trial court found that Appellees had taken prudent steps to assure notification to the donors of the aforementioned events, well within their duties as directors. Under these facts we agree with the trial court’s determination that the newsletters were privileged communications as they related to legal issues pertaining to NCC which could have impacted the recipients of the communication, the donors.
P66 …Furthermore, the trial court found that the statements in the newsletters were factually accurate. As a result, actual malice could not be found as there must be a finding of knowledge of falsity or doubts about its truth; neither was present here.
[p.35-36, “false light invasion of privacy”; see IF, p.475-6]
P71 As previously discussed, the trial court’s finding that Marcus was a public figure was not in error. Furthermore, Marcus provided a list of 6,201 donors to NCC, of whom at least 3,000 had donated in the five years prior to trial. These donors were informed of the potential for NCC to lose its tax-exempt status. This could have in turn affected their personal tax liability. As a result, we find that the information provided was not only provided about a public figure but also served a public benefit. As a result, the trial court’s directed verdict on Marcus’ false light invasion of privacy claim was proper.
Source 13: The Arizona Supreme Court Decision (oct/08).
Source 14: Public letter from Uri (winter 2008-09), announcing his resignation as a result of the lost appeal.
Background: Uri again repeats the charges which had now been refuted in court three times. This appears to be his first public claim that his friction with NCC was “over what amounted to differences in theological perspectives”. But still absent is his accusation of the court’s “religious and political bias and prejudice” (p.474), presented so diligently in IF. Conversely, Uri announces his voluntary resignation from NTCF, effective 27/feb/09, a major trial-related development that is absent from his book.
Source 15: Newsletter from NTCF in Israel (jan-feb/2010), reporting clashes between NTCF board and Uri
Background: This letter references the above as the previous NTCF newsletter, showing a one-year gap in updates. Based on the source following this one, it was during that year of silence that Uri established "Chut Hamshulash" and altered the NTCF logo and acronym. It is instructive to compare this brief description of Uri's conduct with the description provided by NCC’s attorney in 2003 (Source 3 above).
[excerpts, emphasis in original]
The last LetterNews you received from the Fund, at the end of 2008, contained a lengthy statement from [Uri Marcus], as General Secretary, announcing his upcoming resignation from the organization, effective at the end of February, 2009, with an explanation of the reasons for his resignation. In fact, Uri Marcus stated his intentions in several ways, and as promised, he indeed stepped down from the Fund in Israel. (At this point in time, however, he is still involved with the NRF (in the United States) and the NSG (in the UK).
During the course of the summer months, there arose a number of disagreements with Uri Marcus, relating to financial issues. It was hoped that these issues could be peaceably resolved prior to our sending out this letter. However, not only have those issues not been resolved, they have gotten worse.
As a result of those disputes, Uri began to assert that he did not resign from the Amuta and, despite years of unsuccessful litigation against others, which resulted in part in his decision to resign from the NTCF, Uri Marcus has now threatened to sue the Amuta and those involved with it, because of the above-mentioned disputes. We have no doubt that our position on all matters, including his resignation as a general member of the Amuta, as well as the claims that the Amuta has against him, will be upheld if these issues are pursued legally.
Notwithstanding the above, it has recently come to our attention that Uri Marcus has been in contact with some of you, encouraging you to support another ministry that he is now managing and which he claims “has taken over to do what Nehemiah Fund isn't doing anymore, and we will do a much better job of it”.
We wish to inform you that the Nehemiah Fund has not shut down its operations. Quite the contrary, it is continuing to operate in the same manner as it did before Uri Marcus resigned. We have replaced him with another member of the Amuta who was also unanimously appointed to the Board by the general membership. In the event that a final decision is made by the Board of the Amuta to shut the Fund down at some time in the future, you will hear about it directly from us, and not through any other person or agency.
Unfortunately, much damage has been done recently to the reputation of the NTCF and to those associated with it…. If you are an American donor or a British donor, any donations you may send or may have sent since August of this year, to any person or entity (other than the Nehemiah Fund in Israel), that was intended for the NTCF, will not have reached us. Donations from Canadian, New Zealand, Australian, Dutch and Swedish donors will have unfortunately met the same fate….
Source 16: An “Open Letter” from NRF-USA, giving a different version of the above conflict, may/2010.
Background: The gist is an unqualified defense of Uri and an unqualified condemnation of NTCF, using phrases resembling the condemnation of NCC in IF (p.452-3). But paragraph 11 implies that these offenses even surpassed the clash between Uri and NCC.
[excerpts, emphasis in original]
We would also like to take this opportunity to address a decision that NRF, as well as the other affiliates in the UK, Germany, New Zealand and elsewhere, made regarding the Nehemiah Trustees Covenant Fund (hereinafter “BNN”) in Israel.
In order to clear some confusion, we need to shed light on a few facts with regard to a recent BNN newsletter that was sent out speaking against NRF President Uri Marcus and feel it is important to set the record straight, for the sake of all concerned.
The NRF was established according to IRS code as an independent ministry in 2003. Our vision, until mid-2009 had been identical as that of the BNN in Israel. So long as the BNN continued to carry out on the ground what the NRF was desirous of accomplishing in Israel, the funds we collected were directed to the BNN in Israel. However, as new members came aboard the NRF over the last few years, we began to see three main areas of concern that gave us pause, with regard to BNN.
- Honor. It became apparent that BNN’s activity was diverging away from NRF’s joint mission, shared with BNN’s founder Uri Marcus. In order to recapture and honor NRF’s (and Mr. Marcus’s) original vision, changes to BNN’s fund disbursement policies needed to be modified and implemented, but BNN’s Board choose instead to become uncooperative, insisting that they receive funds from us unconditionally.
- Vision. The NRF came to recognize that BNN was assisting too many Christians in Israel who were unwilling to accept the yoke of Torah in their lives, which negated their testimony of Yeshua as the Jewish Messiah. NRF felt that BNN was burning the very bridge they were building between the Jewish people and the teachings of Yeshua. Without this vision, NRF’s members were finding it difficult, if not impossible to continue their financial support of BNN.
- Integrity. This was by far, the most disturbing and clear-cut factor in our eventual decision to part ways with BNN. Over the last year, as tensions escalated, we began to witness the most outrageous and unbelievable conduct and decisions being made by the leadership of BNN. BNN not only, time after time, violated their own by-laws and civil law, but the rules of common decency and order as well. Before the eyes of G-d and man, they abandoned their willingness to duly consider the voice of their Benefactors. Many of their decisions appeared to be personal attacks directed against their founding member Uri Marcus, after his resignation from their Board….
…. BNN’s goal was to wrongfully and improperly oust Mr. Marcus, as a founding and current member from their organization… and then continue their ministry within the framework of their own imposed and usurped vision.
We will not get into the numerous and grievous violations we saw, but we will provide them to you upon request, if you so desire. Our intent is to simply tell you why, after much prayer, we felt we had no choice but to sever our relationship with BNN.
The BNN subsequently wanted to place the blame for NRF’s decision to separate from them, on their founding member, Uri Marcus. This blame was simply misplaced. It wasn’t about Mr. Marcus. It was always about honor, vision and integrity, and perhaps most of all, it was about what was GOOD FOR ISRAEL.
Nevertheless, we would like to inform our donors that we have always found Uri to be upright in character and integrity and are honored that he will carry on the original vision of the NRF in the Land of Israel. He has never given us reason to doubt that his heart and passion were for the Land of Israel and G-d’s people who resided there.
Over this last year, Officers and Directors of the NRF, have never before personally witnessed such injustices as those committed by the BNN towards Mr. Marcus. Our concerns to them fell on deaf ears.
We therefore decided unanimously to support the new ministry Mr. Marcus began in September 2009 — Chut HaM’shulash (Threefold Cord) aka Nehemiah Threefold Cord Foundation (NTCF) instead. Chut HaM’shulash will renew the work and vision that Uri pioneered 23 years ago, namely functioning as an under girding support to the poor in Israel, providing zero-interest business loans, educational grants and emergency assistance grants to those who carry the testimony of Yeshua and are observant of G-d’s commandments as outlined in the Torah.
We want to apologize for any confusion that BNN’s newsletter (sent via email and by regular post) may have caused you and ask that you pray and seek HaShem with regard to how He might guide you in your decision to continue to support the work and vision of the NRF and what Uri is continuing to do in Israel.
Finally, because BNN’s insistence to perpetuate confusion by continuing to display our logo, masthead and Chut’s initials “NTCF” in their communications, we have taken positive steps to clear up that confusion for you. In order to identify any future communications that originate from us, always look for the “Chut” logo in our masthead, just as you see it displayed in this letter. It is our hope and prayer that all of you will continue to support the good work He has begun.
Blessings in Yeshua our Messiah,
John Medwin, Director
Barry Midthun, Director
Mike Dyer, Director
Postscript: There are numerous statements which contradict the messages in the book under review. One is the arbitrary substitution of “the BNN” for “Nehemiah Trustees Covenant Fund”, the origin of which is not explained. The following year, Uri had no problem spelling out the Fund’s proper name with proprietary pride (IF, p.62).
Another is the dogmatic condition (paragraphs 5,12) that “support to the poor in Israel” by NRF would be provided only to Messianic believers who accept “the Torah”. This discriminatory practice was attempted by Uri as General Secretary of NTCF back in 2003 during my service there (see Appendix A, Fiction 4). Such an approach contradicts the book’s protest (IF, p.70-71) that Israeli congregations were depriving needy Israelis of food because of doctrinal issues. It likewise contradicts the public statement of NRF’s new partner that “not everyone has to agree with the conclusions we have reached from the Tenach or messages from the Brit Ha'Chadashah”.
Source 17: Nehemiah Fund in Israel, dec/2010, announcing that they would be shutting down
Background: Few Messianic believers, even in Israel, are aware of this development, now nearly five years old. The previous events (Sources 15 and 16) are even less widely known. But then that can be said for virtually all the documentation in this Appendix file.
(key excerpt)
We are thankful to the Lord that during 2010, for the first time in the history of the Nehemiah Fund, we were awarded a Certificate of Proper Management [Ishur Nihul Takin] from the Registrar of Charities that is under the Ministry of Justice of the State of Israel. This is an important document which serves to inform other non-profit organizations and donors that the Fund is being properly managed and that it is abiding by its stated goals and purposes.
Under the Fund’s present management, we were able to correct long-standing problems that had previously been the cause of our not being able to obtain such certification.
Unfortunately, due to events of the past year or so, the general membership decided that the Fund has not been able to recover from the damage it suffered and as a result, it prayerfully considered a number of possible options, including voluntary dissolution.
Accordingly, it was decided that after December 31, 2010, NTCF will no longer be active in seeking donations or in distributing assistance, as was done till now. We will also not be able to receipt any donations received after that date. Any assets remaining with the Fund will be transferred to another non-profit organization with similar goals, in accordance with the requirements of Israeli law.
Postscript: Like NCC several years previous, NTCF found itself able to correct management problems after Uri’s exit, but unable “to recover from the damage” sustained by the hostile way in which he exited.
The demise of NCC receives a short nod from its former founder and president on page 487 of IF: “The NCC, by the hand of Defendants, who had taken it over, in order to continue the good work I began, disbanded at the end of 2008.”
The demise of the organization to which Uri gave many more years of his life, and which provided him with a living during all those years, goes completely unmentioned in IF. However, his Chut newsletter, 2011, does comment on that development, and it constitutes my next source.
Source 18: Chut Hamshulash/NRF/Threefold-Cord/(New)NTCF newsletter, winter 2010-11, noting the demise of the Nehemiah Fund (relevant excerpt)
Background: This curt dismissal of “The Nehemiah Fund” (prematurely stripped of its trademarked acronym) stands in sharp contrast to the achievements of that Fund so lovingly portrayed in IF later that year (p. 71 for example, noting aid “of over 2.5 million dollars to over 1500 families”). For more background on the logo and IP confusion, see Appendix A, Fiction 5.
Postscript: As elsewhere (for example Source 11 above), Uri misrepresents his relationship with NTCF as “the founder [serving as fundraiser] since 1987”. The original founders of NTCF were John Relf, Elhanan Wiseman and Arieh Klein. According to them, the Nehemiah Fund was established in 1987 with a large gift from a Christian in the Far East. Uri's first contact with the Fund was as a recipient of a loan in 1991. Uri was presumably one of the seven members who registered NTCF as an Amuta (Israeli charity) later in 1991.
Source 19: Responses from those accused of wrongdoing in IF
More than 10 individuals contributed to this section, but only on condition of anonymity. To the last man (or woman), they repeated the same thing: "Don't ask me to sign my name or give details of what I went through. He'll know it's me and he'll come after me again."
These are people who were invited to express their pain, which everyone agrees is a basic human right and need. Yet their experience has convinced them that just to identify themselves would invite retaliation. From my own experience, I can't argue. So they speak here anonymously.
My goal is to simply allow their pain to be heard by our community... for the first time without restriction.
As for someone who might be tempted to admonish these people: "You need to go to your brother and make things right - not air your grievances out here in public..." be advised that I only took testimony from those who have already confronted Uri Marcus directly. Their comments below are documenting the results of their attempts to "go to him and make things right". There were a few attempts to appeal to specific leaders as well, and "make things right" with their help. That effort was also fruitless.
This then was properly the stage where one is to "tell it" to the wider Body of Messiah (Matt.18:17). So that was also attempted, with the hope that the wayward brother might "listen to the Body" and repent of the abusive behavior. The quotes you see below were part of a report seen in 2007 by a sizable number of Messianic and Christian leaders who were/are acquainted with Uri Marcus.
The prevailing response from these leaders: Stop talking about it. "Just leave it alone. If you keep quiet, you will end the cycle of accusations and counter-accusations, and everyone will be able move on."
The abused believers obeyed and tried to move on. It has done them no good. After a period of relative quiet, they have been battered once more with the same slander, this time in an internationally distributed book. And to date, they are still without a voice.
Please take a moment to listen to them. After 12 years of silence, that's not too much to ask.
And please keep in mind that these are their personal feelings, which are not subject to value judgments. No one can say to them, "You're wrong to feel that way."
"This has been a very lonely walk we have been on. Very few have had encouragement for us. Most seemed to disappear once the trouble started."
"Thanks for your encouragement - however, for some reason none of it seems to matter. I don't understand the evil dynamic that is going on here at all... so much chaos, heartbreak and emotional blackmail."
"My initial reaction to this is 'too little too late' in my case. My life has been ruined in so many ways - I am emotionally destroyed and terrified of financial ruin now."
"I'm not sure who can possibly afford financially to 'tell.' I'm afraid Uri's access to the U.S. legal system has made him very powerful."
"I am now on an anti-depressant just to be able to get out of bed and go to work. I CANNOT go into that arena and face the beast and the unfairness. He is waiting to devour us and destroy us."
"A number of folks have been asked from time to time to step forward and tell what went on. I do not know many that will, because like me, they can see there is a price to pay for that at the hands of Mr. Marcus."
"I am way too scared to even tell what he's done to me - plus I don't trust anyone to follow thru to hold him accountable."
"I think if anything, a site like this will wind up bringing a lot of scared and hurt people out of the closet - it may help them."
"My heart has suffered for the way uri and his supporters have stolen and gutted our lives and the lives of many others in the name of their alleged righteousness before the 'Throne of Grace'."
"How to stop someone who can pursue you anytime he wants? How many more years do we have to live this nightmare out? I just want it to all go away. How long is G-d going to allow him to torture us?"
"This is hard for me to understand and believe, that it has gone on for this long! I right now cannot even remember what year it was when he flew to [location] to devastate things with [names withheld]."
[from the individuals referred to above:] "We can't say much. Since we suffered many things unique to us, it would not take Uri long to figure out where it came from, and we want nothing more to do with this man. I can only say it is totally unfair for anyone to treat those who have helped him as long and as much as we have done, that he would choose to try and destroy us as he did."
"This is exactly what I have desired for so long - for the truth to come into the light - but it can only happen if leaders decide to care about the sheep... Unfortunately it's too late for me - I was the perfect target. And I let him destroy me."
"I appreciate your efforts, but I am really uptight, nervous and generally disheartened by it. I think that it will be seen as us violating something."
"I think it's true that Uri uses isolation of others to his advantage. If anyone wants to stand up to him, he corners them (as in my case) and gets his way."
"Uri and his associates have slandered our reputations all over the globe irreparably - for three years. I don't think I can bear to look at it anymore. I can't cope with the smallest thing in life anymore, I walk around on the verge of tears."
"I once supported him, but I now have no respect or trust for Uri Marcus professionally, ethically or financially. I personally feel violated and deceived by him and his associates."
"I have prayed for the last four years that God would not hold accountable those who have blindly believed Uri and have done whatever he asked of them. They have no idea what we have had to live through because of this man."
"How can leaders not speak up about destruction that they can see for themselves? It is amazing how many lives have been ruined by him, and it looks to me like he is continuing to do it with impunity."
"Just the other day, I started praying that if the time that G-d had given uri to repent and change things was up, then please allow all his lies and schemes to come to light so that Everyone will see what he has been doing."
A "Tachlis" Question: How will any of this information help anyone?
The expression Tachlis in Jewish culture can be roughly translated to mean: "Let's get practical," or "Give me the bottom line." And while many practical questions could be asked at the end of this presentation, I believe the above is the least likely to be asked by those who "enjoyed" this Review, and the most likely to be asked by those who were "troubled" by it.
Over time, many believers have voiced this question in relation to different stages of the Family scandal alluded to in IF? The End of a Messianic Lie. Supporters of NTCF's former General Secretary and/or NCC's former President and/or NRF's current President had one set of reasons for their answer. Opponents had another, and supporters-turned-victims had still another. But all sides agreed that revisiting the past would do no good. I will try to address all of you in explaining why I strongly disagree.
Perhaps as you read the above comments, you were able to see nothing but "slander of a brother". Perhaps this entire Review has seemed like a bash-fest against one individual, which cannot possibly do good to anyone, least of all Uri Marcus / Uriel ben-Mordechai. That was the view of some Messianic and Christian leaders who were approached for crisis intervention when the scandal was still in formation. Those leaders never asked what it might mean for so many people from different times and places to be testifying of similar abuse experiences. They insisted that it was wrong to be testifying at all.
They condemned the voices for seemingly a good cause: peace and unity among brothers. Because "we are all brothers", it follows that dealing with the problem openly "would hurt this brother", and hurting this brother was a sure way to "destroy peace and unity".
Implicit but unacknowledged was the idea that the welfare of the other brothers, those on the receiving end of the abuse, should be sacrificed for the welfare of one particular brother. More explicit was the recognition that the wishes of this particular brother gained priority status because he (unlike the others) had demonstrated that he would destroy peace and unity until his wishes were honored. This is a well-known threat in abusive situations; counselors call those who cave in to it the "enablers" of an abuser.
An excellent Christian blog called the Whitby Forum explains why silence in the face of abuse is not neutral:
For the person on the receiving end of spiritual abuse, nothing is more crushing than silence after they finally gather the courage to tell their story to someone, and the person they turn to for help is dubious or passive or, worse, becomes complicit in the abuse. Aloneness never felt so alone!
Sometimes the abuse victim reaches a point where they may seem to be overreacting. People who have never been targeted by an abuser, can’t possibly understand the emotional toll this kind of abuse can take. But where abuse of any sort exists, not to act, is to enable. Passivity and indifference, regardless of the reasons, are ways of enabling the abuser to continue.
Sadly, an enabler can be just as trapped in the abusive system as the victim. They can be just as intimidated and fearful—and for good reason. If they speak up, they may fall from favor, forfeit their place as an insider, become the target of abuse and character assassination, even risk losing their job or future promotions. They can and do pay a price.
Obviously, the easiest course of action is to do nothing, to keep their head down, and avoid the conflict. Sometimes, to prove their loyalty to the designated spiritual authorities, an enabler defends the abuser and participates in a cover-up. Sometimes the enabler actually engages in a form of abuse by scolding the victim to stop being so divisive, unspiritual, and disloyal, to trust God to take care of things, and to forgive their abuser.
Enabling is not a neutral course of action. The enabler actually escapes nothing despite their desperate efforts to avoid trouble for themselves and take the easy way out. It's a classic Catch 22 for the potential enabler. No matter which way they turn, they face risk. But here's the kicker: the price of becoming an enabler is significantly higher than the price anyone will pay for openly addressing and opposing abuse.
Enabling can be passive or active, and any one of us can assume that role. So it’s important for us to look the role of the enabler cold in the eye.
So although "neutrality" (refusing to take sides) is perceived as the easiest way to pacify an abuser, it is a double illusion. This kind of enabling brings only a temporary and uneasy peace; and eventually it turns out to be more destructive than confrontation would have been.
Another accepted custom that feeds this false neutrality is what we might call the "cycle of violence and silence". The notion that the abusive leader you encountered is a unique hiccup on the radar of God's people (therefore the less said, the better) is shared by an unknown number of other groups among God's people... all of whom are observing the no-talk rule and thereby reinforcing the illusion that "the less said, the better".
To be specific , the experience shared by NCC, NTCF, NRF and Restorers of Zion is far from unique. And we know it's far from unique because the no-talk rule is breaking down. According to this recent blog by a believer, the strategy followed in IF and documented in this Review bears striking similarities to abuses elsewhere in the Body of Messiah.
As the injured limp or crawl away from these ministries and word begins to circulate about what happened to innocent people, the common strategy from organizational leaders is to run smear campaigns for cover.
There is so much literature written on this behavior the web is choked with it. At stake is the “good name” of the leader and ministry. It must be preserved. The terrible “slander” of the “good name” must be stopped, even if it means lawsuits, behind the scenes threats and outrageous lies....
...anyone who dents that image, questions something or holds up a mirror to them about the harm they are doing behind the scenes is the one who must be destroyed, threatened, intimidated into silence. Their name must be mud-spattered.
The rationale for a leader’s legal threats, for example, is the protection of their “good name.” The fact that their own malicious and ungodly behavior has generated the cries of pain heard by the public is neatly covered over....
What an avoidable tragedy it is. I believe that God honors repentance in individuals and by leaders of organizations. It is so rare, however, that I cannot name a single case of it.
Why repentance from this "avoidable tragedy" is "so rare" is a burning question. Many counselors in our community have offered possible explanations. But they agree that without enablers, the abuse cannot take place. The Whitby Forum (quoted above) points out that enablers actually prevent the abuser from repenting.
Furthermore, enabling does no favors for the abuser, for instead of confronting their sinful abuse of power over others, the enabler reinforces the abuser's clutch of power, sense of entitlement, and prerogative to abuse others.
We have a God-given mandate to stand with battered innocent people, and to stand against threats and lies, which is as non-negotiable as the truth itself. But focusing on the welfare of all other brothers except this one would be equally wrong.
What, then, about the welfare of this brother who has created for himself numerous false narratives and published them numerous times? How much love are we showing to someone who is trapped in a cycle of destructive (and self-destructive) behavior? The pattern of abuse and the trail of lies could not have run for 12 years if it weren't for a steady line of enablers. Some who joined that line were active partners in slashing the designated victims. Many more simply endorsed and enforced silence about the ungodly behavior. You who chose silence in order not to "hurt this brother", tell me: Is he in a better place today because of that choice, or worse? Do you care what the answer is?
We all claim that we love the brethren, that in a case of abuse we want God's best for victims and perpetrators alike. It's time for "tachlis" - practical action to back up our nice godly-sounding words. Do we love the brethren enough to break this habit of enabling abuse in our spiritual Family? We can start with the case before us, and begin to show real love toward this particular brother.
If a critical mass responds in repentance as a result of this Review, the effort and risk will have been worthwhile.
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