Playhouse Suit Comes to an End

By Jorge Casuso

March 30 -- The California Supreme Court on Tuesday declined to review a lawsuit that had a potentially far-reaching impact on the way local government is conducted.

The decision puts an end to a three-year legal saga over a backyard playhouse that questioned a council member’s alleged influence over staff, testing the First Amendment protections for City leaders.

The suit, filed by a prominent local land use attorney on behalf of the Levy family, argued that Councilman Ken Genser violated the City Charter when he spoke to planning department employees on behalf of a constituent.

After the communication, City staff reversed their position on the playhouse.
Tuesday’s decision by the state’s highest court lets stand a ruling by the 2nd Appellate Court, which in January found that the First Amendment protected Genser’s right to communicate with staff. (SEE STORY)

The case will not be appealed to the U.S. Supreme Court, said Chris Harding, the attorney for the Levys, who sued the City after it ordered them to tear down the playhouse built for their five-year old son.

“Hopefully, finally, this matter is over and people can get to much more serious issues,” said Assistant City Attorney Joe Lawrence, who led the defense. “It has been going on too long already, and the City is happy that it’s finally come to a long, long, long-overdue end.”

Genser, who has repeatedly called the lawsuit “nonsense” and “political,” said it was filed “a day or two” before the council was set to meet to decide the fate of the playhouse. Genser said he called the Levys to let them know he would support a decision to allow the playhouse to stand.

“There was clearly no issue to be tried,” Genser said. “Harding couldn’t wait… It was done to embarrass me.”

“Chris (Harding) was trying to get a ruling that the charter prohibited the council to talk to any staff that wasn’t the city manager,” Genser said. “Chris’ interpretation of the charter was wrong and dangerous.”

Harding counters that the Appellate Court’s ruling, and the Supreme Court’s decision not to hear the appeal, will allow council members to influence staff as long as they don’t order them.

“I think it’s quite extreme in reading the charter,” Harding said. “I think this has unfortunately restructured city government in Santa Monica in a very fundamental way.

“It has greatly enlarged the power of the City Council at the expense of the city manager. It will have a chilling effect on citizens suing government and makes Santa Monica an ever harder place to work.”

Harding argues that the decision will make it harder to fill City vacancies, especially in the Planning Department, where 13 of 62 positions are unfilled. “This creates an even more hostile environment for staff,” Harding said. (SEE STORY)

But the case is not entirely over. The City Council must now decide whether to seek the cost of its attorney’s fees, which could be “considerable,” Lawrence said. The fees are based on the going rate for attorneys in the area, which could be $300 an hour or more.

“Under the law, the City is entitled to costs of attorneys fees,” Lawrence said. “The City has an absolute right to recover its costs. It’s considerable. It’s in the tens of thousands of dollars.

“It went on for a long time, and they dragged it on to the Supreme Court, which only added expense. We’re talking a lot of money.”

Harding said he would challenge the City’s efforts to collect legal expenses, arguing that it would “penalize whistle blowers,” who would be reluctant to challenge government.

“We think we have some good arguments against it,” Harding said. “There’s a First Amendment privilege that attaches to suits against government. That’s the only issue that’s left. That’s an important issue.”

The playhouse case drew widespread interest with nine cities filing briefs supporting the City and several opponents -- including former mayor Nat Trives and the National Lawyers Guild -- filing briefs on the Levys behalf.