During a hearing Thursday, Thurston County Superior Court Judge Thomas McPhee heard about two hours of impassioned argument from attorneys for plaintiffs and defendants. He announced that he’d rule Monday on whether the lawsuit is a “Strategic Lawsuit Against Public Participation,” or SLAPP.
More than 100 people attended the hearing, and some were turned away from the courtroom amid concerns of overcrowding.
The lawsuit, filed in September, is aimed at striking down the boycott based on the argument that the co-op did not follow its own bylaws in arriving at the decision. The lawsuit seeks an order that “the OFC board follow OFC’s governing rules, procedures and principles in the future.”
The suit alleges that the co-op’s rules require the board to make decisions by consensus, and that not all members had agreed to the boycott.
The plaintiffs are five current or former co-op members. The defendants are 15 current or former co-op board members.
Bruce Johnson of Davis Wright Tremaine in Seattle, an attorney for the defendants, argued Thursday that the lawsuit aimed at overturning the boycott is an attempt to block the co-op board’s right to free speech.
Lawsuits aimed at blocking free speech are illegal in Washington under an enhanced anti-SLAPP statute passed in 2010.
Johnson argued that under the co-op’s bylaws, the board has the right and authority to make the boycott decision.
“Their decision was an exercise of free-speech rights,” he said. Johnson also argued that the plaintiffs could have pursued a referendum among all co-op members aimed at overturning the boycott, thus exercising their own free-speech rights.
“If you disagree with the board, you can appeal to the whole membership,” Johnson said. “They refused to do that.”
Johnson pointed out that three of the five plaintiffs ran for election to become co-op board members in November 2010 – after the boycott was enacted – and lost. They lost to candidates who support the boycott.
Johnson asked McPhee to dismiss the suit and award attorneys’ fees. He additionally asked McPhee to require each plaintiff to pay an “anti-SLAPP statute penalty” of $10,000.
Bob Sulkin, an attorney for the plaintiffs, argued that the co-op’s board violated its boycott policy, which began in 1993 and is in effect today. It states that boycotts must be “nationally recognized,” and that is is not the case with the boycott of Israeli goods.
“There is no dispute that this is, in effect, the policy today,” Sulkin told McPhee. “The question before you today is, did the board follow its own policy, or did it ignore it?”
Sulkin also argued that no true “consensus” was reached on the boycott among the co-op’s staff members, which is required under the co-op’s boycott policy.
“The point is, once the policy is set, you have to follow it,” Sulkin said.
Sulkin argued that free-speech rights also apply to his clients, and that the board is not authorized to make decisions on behalf of all of its members.
“Someone can’t write an article and sign my name to it, and claim free-speech protection,” Sulkin argued.
In response, Johnson pointed to the co-op’s bylaws, which give the board authority to “adopt policies to foster member involvement” and to “resolve organizational conflicts after all other avenues of resolution have been exhausted.”
Johnson cited state laws regulating nonprofit organizations, such as the co-op, that state that nonprofit boards have broad and general authority to make decisions on behalf of the organization.
Members of Olympia Boycott, Divestment and Sanctions, or Olympia BDS, oppose the lawsuit aimed at overturning the boycott. Members were at Thursday’s hearing, as was at least one member of StandWithUs, a U.S. pro-Israel lobbying group. Olympia BDS has publicly criticized StandWithUs’s involvement in the lawsuit, arguing that it’s part of a broader attempt to curb the growing strength of the BDS movement.
The BDS movement supports boycotts, divestment and sanctions against Israel “until it ends it occupation of Palestine, respects the right of return of Palestinian refugees, and gives equal rights to Palestinians living inside of Israel,” according to its website.
Jeremy Pawloski: 360-754-5465
jpawloski@theolympian.com
