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Archive for Tuesday, June 24, 2003

City seeks subpoena dismissal

June 24, 2003

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Subpoenas of Lawrence city commissioners in the Wal-Mart legal battle should be quashed, the city's attorney said in a motion filed last week.

Gerald Cooley said the city commission "took no action and made no decision" in the city's denial of building permits for a Wal-Mart and restaurant at Sixth Street and Wakarusa Drive.

"Accordingly," Cooley wrote, "the testimony of the city commissioners is irrelevant to this case."

The filing came in response to a plaintiff's memorandum, asking Douglas County District Judge Michael Malone to allow some questioning of the commissioners' "mental processes" -- including political beliefs -- as part of the case.

"Whatever actions the commissioners took regarding plaintiff's building permit application were not taken in public or through any formal proceeding," attorney Timothy Marks wrote, except at meetings where a building moratorium for the site was discussed.

Commissioners declared the moratorium earlier this month after Wal-Mart filed an application for a building permit at the site. 6Wak Land Investments LLC, a partnership of Lawrence developers Doug Compton and Bill Newsome, filed the lawsuit challenging the moratorium in late May.

The city's position is that Wal-Mart is a "department store," which had previously been prohibited from the site. The restaurant, the city has said, is part and parcel of the Wal-Mart plan.

6Wak's lawsuit concerns the restaurant permit but would presumably defang the entire moratorium if successful. Wal-Mart officials have not made a formal decision whether to join the lawsuit.

State law generally allows commissioners to avoid testifying about their political beliefs on the witness stand, but Marks wrote that "not every mental process is universally protected from inquiry."






Cooley disagreed and suggested the case was so simple that it didn't require testimony from commissioners.

"Fundamentally, if plaintiff's application met requirements of the city zoning ordinance, then it is entitled to the building permit," Cooley wrote. "However, if the plaintiff's application does not meet the requirements of the city zoning ordinance, then it is not entitled to the building permit."

The case returns to court July 17.

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