Did Sawant break the law in rallying for the Showbox?
Did Sawant break the law in rallying for the Showbox? Lester Black

The fight to save the Showbox theater was dealt a major blow earlier this month when the property's owner sued the city for $40 million, arguing the temporary protections were illegal. One of the primary arguments in the lawsuit is that council members like Kshama Sawant violated a state "fairness" statute by privately communicating with their supporters before the final vote.

The law requires officials conduct business in a fair and open way when dealing with certain "quasi-judicial" decisions like specific land use actions—did Councilmember Kshama Sawant’s rallying of Showbox supporters violate this law?

I asked two land use lawyers and both had a similar analysis: the council may have violated Appearance of Fairness (AOF) law, but winning a case based on this statute is difficult and the court may ultimately decide that this law doesn't apply in this circumstance.

Chuck Wolfe, an affiliate associate professor of urban design and planning at the University of Washington College of Built Environments, told me if he was filing the lawsuit he would have included this same claim.

"I would have raised this issue as well. However AOF claims can be hard to succeed with (and prove) given the many exceptions and definitional elements," Wolfe said in an e-mail.

Winning a case like this is difficult because the AOF statute only applies in a narrow set of circumstances. Generally speaking, city council members are free to communicate with advocates outside of the normal meeting record. Rick Eichstaedt, a Gonzaga law professor and director of the Environmental Law and Land Use Clinic, said it's not entirely clear if a court would subject the AOF statute to this law.

"Washington’s appearance of fairness doctrine applies only if the Council was acting in a quasi-judicial manner. For land use actions, this includes property specific actions like conditional use permits and the approval of a subdivision. Generally, actions the City Council took like zoning decisions are considered legislative in nature and are exempt from the requirements," Eichstaedt said.

The confusion lies in how the council protected the venue. The council voted to expand the Pike Place Market Historical District to include the venue. That would normally be considered a legislative action, not a quasi-judicial action, and thus not covered by the AOF state. The council's original proposal would have included multiple blocks surrounding the venue, but they ultimately decided to only protect this one specific building. So, since only one building is impacted, does that make this a quasi-judicial decision and covered under the AOF statute?

"Generally. Yes. An action impacting a single property is more quasi-judicial and less legislative in nature. The courts will consider the facts of the situation. It is not black and white," Eichstaedt said.

If a court does rule that the AOF applies to this situation the expansion and its protections can be reversed.

"If a councilmember’s participation violates the Appearance of Fairness Doctrine, the court can invalidate the decision. A new hearing and decision will then need to be made without the disqualified council members," Eichstaedt said.

Wolfe said that even if the court does decide that the council's action was quasi-judicial, there are still a number of exceptions to the rule that the city could possibly protect itself with. The AOF requires that a challenge must be brought up "as soon as the basis for disqualification is made known to the individual." Did Forbes' lawsuit, filed more than two weeks after the council acted and a week after Mayor Jenny Durkan signed it into law, meet that time requirement? A court will have to decide. The AOF statute also grants an exception for zoning amendments that are "of area-wide significance." The city could try to argue that preserving the Showbox has a significant impact on the surrounding area.

I asked Sawant last week if she was worried about how her advocacy for the project might jeopardize saving it. She didn't seem to have any regrets.

"If I should be recused from any Showbox votes because I’m organizing on an issue than that basically implies that all city council members and all the county council members should be recused from every single vote that involves big business because the corporate politicians are completely biased on big business," Sawant said.

Sawant said she is just trying to represent what the working folks want.

"Let’s just be honest, there is nothing neutral or objective of any actions and I am very proudly on the side of ordinary working people. My solidarity is with working people and artists and ordinary people that want to preserve... the Showbox," Sawant said.

Ultimately this AOF statute is only one of a handful of claims Forbes is suing the city over. So even if a court rules against this aspect of the lawsuit, Forbes could still prevail on his other claims and block the preservation attempt and get a settlement from the city. Having multiple viable pathways is one reason Wolfe said he thought Forbes had brought a strong lawsuit against the city.

"I think it's a well-drafted complaint for legal purposes," Wolfe said. "Has the council really done it right? I don’t know, I’m not sure. It’s a really interesting case, I think it’s a close case."