Playhouse Suit Reaches State Supreme Court

By Olin Ericksen
Staff Writer

March 1 -- What began three years ago as a zoning dispute with the City over a child’s backyard playhouse landed Friday at the front steps of the California Supreme Court, bringing in tow potentially far-reaching questions on the limits of First Amendment protections for City leaders.

Attorneys for the Levys, who built the nearly $11,000 playhouse, argue that a lower court erred when it ruled in January that City Council member Ken Genser “did not violate the City Charter by speaking with City planning department employees on behalf of a constituent to inquire about [the playhouse] built on a neighbor’s property.”

“An injunction to prevent such communication violates the First Amendment,” the 2nd Appellate Court’s presiding Judge Arthur Gibert wrote. “The First Amendment protects everyone, even politicians.”

But the Levys argue that Genser’s communication improperly influenced City staff decisions, a violation of the City Charter, attorney Chris Harding stated in the plaintiff’s brief filed Friday.

The First Amendment should not shield a City Council member’s speech if that speech is used to unfairly influence or “lobby” City staff decisions, Harding argued.

Ruling as such would impact other important local and state laws in place to separate the different branches of city government and keep government business open and “transparent,” he stated.

Harding, a prominent local land-use attorney who has often sued the City, argues the appellate court’s ruling gives too much latitude to City officials to influence staff.

The court’s decision “restricts only Council member orders to City employees and otherwise allows all manner of Council member communications with such employees, including advocacy,” Harding contends. The decision, he argues, runs contrary to the First Amendment as reflected in both U.S. and California Supreme Court decisions.

Further, the appellate court’s ruling does not take into account the limitations that the City Charter places on Council member’s First Amendment rights, and according to Harding’s legal papers, “represents an extreme view of the First Amendment.”

The City Charter “is intended to protect City employees from precisely the kind of political interference which occurred here,” Harding wrote.

Assistant City Attorney Joe Lawrence said he doubted the State Supreme Court would take the case, “but if they did, I am very confident that the Supreme Court will uphold the City’s position.”

Lawrence said it is time to put the Levy suit -- which is without merit and violates a state law that shields those who speak out to government, such as constituents -- to rest once and for all.

“It needed to end a long time ago, and it’s somewhat shocking that it hasn’t ended,” Lawrence said. “I long ago stopped trying to figure out what the Levys advisors were up to, but I’m confident the Supreme Court will in fact end this matter.”

Genser has called the lawsuit “political” and said the merits of the case are “pretty absurd.”

At the heart of the issue are two emails Genser sent City staff asking them to find out if the playhouse was built in accordance to City laws.

Harding has said that Genser’s first email sent to City Planning Director Suzanne Frick on March 15, 2000 was fine. It read, "(C)ould you look into this? Is this structure being built without permits? And could it be built with a permit? Please feel free to contact (Garai) directly,” he wrote, referring to Tunde Garai, the constituent and who brought the issue to his attention. Garai is also the Levys' neighbor.

It was Genser’s subsequent email asking Frick to find out the status of the complaint that crossed the line, Harding contends.

In the email, sent on April 2, 2000, Genser wrote, "I just did a 'quick' review of the code. I can't say that I am necessarily accurate… but: Mike's (City building inspector Mike Gruett’s) letter said a 5-ft. rear setback was required. I think the code requires the same rear setback as the rear yard -- generally 15 feet (?) I wonder if the space under the first floor should be considered a story. (I haven't found a citation to support this -- yet.)"

“We think the initial contact was a legitimate inquiry,” Harding said. “But he went back with a second email and pressed his point. We think he went over the line… It was the persistence. He was essentially arguing (Garai’s) case.”

Harding’s brief to the Supreme Court states the City initially confirmed the Levy’s playhouse was built in accordance with City laws. Then Council Member Genser sent his emails and the City reviewed its decision. Eventually the City said the Levy’s were not in compliance with the City codes and must tear down the structure or face prosecution.

The Levy’s fought the City’s decision and the City eventually agreed the Levy’s could keep the playhouse, but the lawsuit carried on, according to Harding, to “obtain declatory relief concerning the meaning of” the City Charter.

The appellate court’s decision in favor of the City reversed a Superior Court’s ruling against the City to not strike the suit.

The Santa Monica City Attorney’s office is expected to soon file legal papers in opposition.