Playhouse dispute may be headed to Supreme Court
SUNSET PARK — Afierce legal showdown over an 8-year-old boy’s backyard playhouse may be headed for the state’s highest court.
Lawyers for David and Beth Levy, the boy’s parents, filed papers on Friday asking the California Supreme Court to review their case, which accuses a former mayor of misusing his influence to have the 12-foot-tall playhouse deemed illegal.
The Levys in January suffered a blow to their case against former Mayor and City Councilman Ken Genser when the 2nd Appellate District Court ruled Genser didn’t violate city charter by asking a staffer through a pair of e-mails to look into the legality of the playhouse.
But Ken Kutcher, one of the Levys’ attorneys, said Friday the court was too narrow in its reading of the law. Though the Supreme Court hears only about 5 percent of cases put before it, Kutcher said he thinks this case will get their attention.
“Our concern is that the court of appeals ruling is inconsistent with the First Amendment right of people, like our clients, to go to court and seek redress against the government when they think the government is doing something wrong,” Kutcher said.
At issue in the case is how politicians deal with their subordinates. City law prohibits elected officials from ordering or requesting a city employee to carry out any action. The law exists so city workers don’t feel their jobs are on the line if they fail to comply.
The Levys first sued City Hall in September of 2000, after building inspectors backed out of their decision to allow the playhouse as a legal, one-story structure. Inspectors said it should be considered a two-story structure — with the first “story” being open, a space under the elevated playhouse. The reversal came after Tundai Garai, the Levys’ backyard neighbor, complained to Genser. It also came after David Levy, a psychiatrist who lives in Sunset Park, had reportedly spent $11,000 to have the playhouse meet specifications.
Kutcher said the case will have implications for cities throughout California and the United States that have similar laws in place to quell improper governmental influence.
“That creates an inherent pressure situation, regardless of the particular substance of the comment,” he said. “It is partly about giving orders, but it’s more than that. It’s about insulating staff against direct pressure from council members — that’s why you have a city manager.”
According to the terms of the January appeals court ruling, City Hall is entitled to recover attorneys fees from the Levys. Kutcher said he is fighting that, saying residents should be able to challenge City Hall when they feel they’ve been mistreated. Kutcher also hopes to recover “hundreds of thousands of dollars” in attorney fees from City Hall.
Genser has characterized the case against him and City Hall as politically motivated by Kutcher and his partner, Chris Harding, a prominent land-use attorney.
The appellate court also ruled that City Hall is protected under SLAPP — Strategic Lawsuit Against Public Participation. SLAPP encompasses meritless lawsuits used mainly by big developers to discourage public freedom of speech when speaking out against a project.
Originally published in the Santa Monica Daily Press print edition on February 28, 2004. Read the original PDF.