Judge to Magnuson Park developer: Back off the First Amendment

A judge last week delivered a swift rebuke to the developer of a Magnuson Park building, which had tried to secure the personal correspondence of building tenants.
Crosscut archive image.

Magnuson Park's Building 11, housing artist lofts and Sail Sand Point, as seen from the north.

A judge last week delivered a swift rebuke to the developer of a Magnuson Park building, which had tried to secure the personal correspondence of building tenants.

Citing constitutional rights to free speech, a federal judge last week struck down a slew of subpoenas issued earlier this summer, which demanded that several people involved in a Magnuson Park land-use dispute hand over email and other communications they've had with dozens of individuals.

"The First Amendment is alive and well in this court and in the state," said Justice Thomas S. Zilly of the U.S. District Court for the Western District of Washington.
The subpoenas were issued on behalf of Building 11 LLC, a development company, as part of a larger case wherein the company is suing the city of Seattle for $7 million over stalled contract negotiations.
In legal filings, the company's attorney Bruce Babbitt argued that the subpoenaed individuals had engaged as co-conspirators to “intimidate” city council members over the terms of the company’s lease for Building 11, a run-down facility on the Lake Washington shoreline at Magnuson Park. The city doesn't have the money to repair the building and bring it up to code, so in 2009 it entered into a lease with the LLC, who planned to renovate and develop the building and bring in various sub-tenants.
The project was plunged into controversy once word got out that Building 11 LLC planned to put in a medical clinic and had lined up Virginia Mason as a tenant, a use prohibited by existing state shoreline regulations. Some also saw this as a violation of the original vision for Magnuson Park, which was deeded to the city by the federal government under stipulations that it be used for recreation. Other concerns included the future of the non-profit sailing school, Sail Sand Point, which has been the anchor tenant in the building for 14 years.

After community members spoke to the council about these concerns, Building 11 LLC came back to the city, asking for additional concessions. The city agreed — so long as the developer was willing to agree to concessions of its own. While the developer sought to extend the lease from 30 to 40 years for tax credits, add 13,000 square feet to accommodate an outdoor play area for a daycare, and eight pages of bank-authored financing terms, the city sought to garner more revenue up front, from the tax credits and by reducing public benefit rent credits (estimated in the developer's legal fillings to be worth over $5 million), and specified against having a medical clinic in the building. The LLC refused to sign the new agreement and filed suit against the city, alleging "breach of contract."

Swept into the undertow of the dispute are former tenants of the building, including artist Perri Lynch, community activists Gail Chiarello and William Bradburd, and Morgan Collins and Caleb Tarleton, the executive director and board member for Sail Sand Point, respectively. While still a tenant (and currently the only tenant) Sail Sand Point has lost space as a result of the developer's plans for the building. The subpeonas, which asked recipients to disclose communications with several Sail Sand Point volunteers, staff and board members, further fanned the flames of discontent between the non-profit and the LLC.
Toby Thaler, the lawyer for the subpeonaed individuals, said he believed there were 12 subpeonas in total, but it's unclear how many of those were served. Mr. Thaler filed a motion to dismiss the subpeonas on the ground that they violated recipients' First Amendment rights.

At the Sept. 13 hearing in Seattle’s downtown federal courthouse, Justice Zilly cut short arguments by lawyers on both sides.
“Let’s just get down to the meat of the coconut,” Zilly said. He singled out two of the subpoenaed parties in the courtroom, Gail Chiarello and William Bradburd, and then addressed the developers’ attorney, Bruce Babbitt.

“Why don’t they have a First Amendment right to communicate among themselves, if that’s what they do?” he said.
The judge quashed the subpeonas' request for communications between individuals, but upheld requests for communication with city agencies, including the mayor's office and city council members and staff. This information had already been granted through public information requests.

In legal papers, the company’s attorney asserted that access might shed light on the core issue of the developer’s case, namely “the city council members’ motives in reneging on their commitments after intense community pressure.”

But Judge Zilly said the communications sought were out of bounds.

“When people communicate among themselves, I don’t see any reason for you to get that information,” Zilly said, moving to approve a motion to quash the subpoenas.

He encouraged Babbitt to obtain insight through “less intrusive means,” including by deposing witnesses under oath.
After the hearing, which lasted fewer than 30 minutes, Chiarello and Bradburd said they saw the subpoenas as attempts to harass and intimidate them. 
“It’s just an outrageous attempt to shut us up,” Chiarello said. “These bully rich development attorneys don’t get to squash public participation in the government,” she said.
Washington state is one of many to enact legislation that protects people from being sued for speaking out. Enacted in 2010 and known as Anti-SLAPP, for Strategic Lawsuit Against Public Participation, the statute allows a party to halt lawsuit proceedings until the court determines if the motives are to chill public discourse. A successful anti-SLAPP motion results in a dismissal of the suit and an award of $10,000 to the sued party.
In the case of Building 11, the individuals named in the subpeonas are not named in the actual lawsuit, which activists saw as a roundabout way of stifling their activity while avoiding the provisions of the anti-SLAPP legislation.

Mr. Babbitt said in an interview after the hearing that the subpoenas were merely part of the legal team’s discovery process as they prepare their case against the city. He denied trying to place “a chill” upon anyone’s activities.

“I don’t think Gail Chiarello can be chilled, she burns with a white hot flame,” Babbitt quipped. He added that “the Judge is a very well-respected and thoughtful judge. He came down firmly on the side of First Amendment protections, maybe even further than the Ninth Circuit has, but we certainly have to respect his decision,” Babbitt said.
Nick Echelbarger, a partner in Building 11 LLC who attended the hearing, said the decision pointed to a way forward.
“I think the judge laid out a very clear path to get the reasonable discovery we need to prove our case,” he said.
Also at the hearing was Assistant City Attorney Greg Narver, who said that while the city of Seattle declined to take a position, the issue had made him personally uneasy.
“I’m uncomfortable with the idea that these people are misbehaving in any way when they communicate with their elected representatives,” Narver said.

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About the Authors & Contributors

Stacey Solie

Stacey Solie

Stacey Solie is a Seattle-based reporter, writer and editor and an adjunct at the University of Washington where she leads narrative non-fiction workshops for scientists. She has contributed to The New York Times, The Daily Beast, The Seattle Times and was the founding editor of The Science Chronicles, an environmental conservation monthly. Follow her @staceysolie