Janis Siegel, Jewish Sound Correspondent
The Washington State Court of Appeals has thrown out a lawsuit filed in Sept. 2011 by five Olympia Food Co-op members against 16 of its current and former board members, upholding a lower court’s ruling that the board did not go beyond its authority or neglect its duties when it voted to approve a boycott against Israeli goods without the consensus of its membership.
Defendants argued that the suit violated their free speech rights and Judge Stephen J. Dwyer agreed, writing in his decision that under Washington’s Anti-SLAPP law, Strategic Lawsuits Against Public Participation, adopted in 1989 and meant to protect First Amendment freedoms, the board’s vote can stand.
“By enforcing the statutory anti-SLAPP law, this decision affirms the free speech rights of the people of Washington,” cooperating counsel for the Center for Constitutional Rights and Detroit attorney Barbara Harvey told Jewish Sound.
CCR is a New York-based non-profit legal and educational organization that served as counsel on the case.
“The Anti-SLAPP law was enacted to protect people from intimidating lawsuits that chill advocacy of controversial positions,” Harvey said. “It worked in this case, and our democracy is stronger for this victory.”
Lawyers for the five co-op members, attorneys Avi Lipman and Robert Sulkin from the Seattle law firm of McNaul Ebel Nawrot and Helgren PLLC, told the Jewish Sound they plan to appeal the decision.
“We feel strongly that the court did not reach the right result,” Lipman, a Seattle-based trial attorney, told Jewish Sound. “They’re disappointed and disagree with the court, respectfully. We are evaluating our client’s options. Certainly nothing is off the table.”
The appeals court also awarded the defendants $160,000 in damages along with attorney’s fees, board members’ expenses, and the legal costs relating to the appeal process.
“We could ask the Court of Appeals to revisit all or part of this decision,” said Lipman. “The Washington State Supreme Court has the option of accepting or denying us a review.”
Lipman said his clients do not yet know which legal option they will pursue; however, that decision should be forthcoming within the week.
Seattle attorney Bruce Johnson from Davis Wright Tremaine LLP, who was involved in writing the Anti-SLAPP law and who argued it in court, did not respond to requests for an interview.
Attorney Steven Goldberg, cooperating counsel from Portland, Ore., also declined to comment for this story.
A CCR press release issued after the ruling on April 7 described the lawsuit as “part of a broader pattern of targeting pro-Palestinian activists in the United States, particularly in legislatures and across college campuses.”
“The real question is why plaintiffs brought a lawsuit instead of exercising their right under the bylaws to bring the boycott decision to a full membership vote,” said Harvey. “The answer can be found in the fact that with several plaintiffs having run for the board on an anti-BDS platform, and lost, plaintiffs surely knew that they would be unable to win membership support for their opposition to the boycott.”
In a special motion filed by the defendants in Nov. 2011, lawyers asked that the court reject the plaintiff’s attempt to “silence the Co-op’s principled stand on Israel’s human rights violations through a policy of [boycotts, divestment and sanctions].”
“The idea that the plaintiffs are part of some nationwide or international anti-BDS campaign is absurd,” Robert Jacobs, regional director of StandWithUs Northwest, a pro-Israel advocacy group told theJewish Sound. “They are co-op members who wouldn’t have contested the co-op’s boycott of Israeli products had the co-op followed its own existing procedures and bylaws.”
According to Jacobs, the plaintiffs were indignant that when the vote to boycott Israeli products was taken without any notice to the co-op community, it bypassed long-standing policies that are required steps to pass a boycott of any country’s products.
In the court’s decision, Judge Dwyer wrote, “the court rejected their argument that the board lacked authority to resolve the boycott issue…instead concluding that the board’s authorization in the bylaws ‘to resolve organizational conflicts after all other avenues of resolution have been exhausted’ gave the board authority to adopt the boycott.”
“Adopting the boycott was fully within the Board’s powers,” reads a statement on the CCR website. “Moreover, Plaintiffs failed to utilize the Co-op’s member initiated ballot procedure, which allows any member to put an issue to a full membership vote by collecting signatures from 300 members.”
The co-op board also argued that the suit’s true intent was to rob them of their political free speech and prevent them from a peaceful and valid form of protest.
“The court’s decision sends a clear message to those who bring bullying and meritless lawsuits in an attempt to squelch the growing BDS movement,” Harvey said. “Such cases will be dismissed by the courts, and those who bring them may be ordered to pay the defendants’ costs.”