Wal-Mart's 'Terrifying' Attack on the First Amendment

Cathy Kern is somewhat of a folk hero in North Tonawanda, N.Y.

But if you ask folks at city hall, or at Wal-Mart corporate headquarters, what they think of Cathy Kern, you'll get the opposite response. Over the past six years, Kern and other anti-Wal-Mart activists have filed 5 lawsuits that effectively staved off the development of a Wal-Mart superstore in their community. Ultimately Wal-Mart prevailed, and their huge store is now in its final stages of completion.

North Tonawanda (NT) is located midway between Buffalo and Niagara Falls, in Niagara County. There are already 6 Wal-Mart's within 16 miles of NT, including a supercenter in Niagara Falls 9 miles away.

In November, 2006, Wal-Mart submitted an application to the City to construct a 183,000 square foot superstore. In May, 2008, the city's Planning Commission approved the environmental impact statement, and by September, 2008, the site plan was approved.

Kern and other NT residents formed a group called NT First, and filed a lawsuit to annul the Planning Commission's decision. In June, 2009 the state court did annul the site plan approval, saying that the city was required by its own code to submit a stormwater pollution prevention plan -- which had not been done. The court sent the case back to the city to complete.

Between November, 2009 and July, 2010, Kern et al. filed three more lawsuits against Wal-Mart, each raising a different point of law. In the fourth lawsuit, Wal-Mart and the City filed a motion to impose sanctions against Kern and her lawyer, David Seeger, for "frivolous" litigation.

In September, 2010, Judge Ralph Boniello, III dismissed the fourth lawsuit, and permitted Wal-Mart and the city to seek the sources of Kern's funding. Boniello ruled that the lawsuit was "filled with re-statements of matters previously litigated and half-truths [and] has only served to further delay the project and cause the Respondents to incur additional legal fees." Boniello added: "In fact [Wal-Mart and the City] have raised the possibility that such delay tactics are consistent with a national campaign allegedly funded by outside groups whose sole goal is to block Wal-Mart developments." The Judge ordered Kern and Seeger to produce their funding sources and NT First membership names, or face contempt of court.

In a letter dated December 9, 2010, Attorney Seeger informed the Judge that the group NT First had "terminated its existence," ended its representation by Seeger, and liquidated its checking account balance of $13.22 -- donating it to The Salvation Army. Seeger noted that under New York law, "an unincorporated association's financial exposure is limited to those assets held by it and for it through its members." Seeger noted, "The Association, now that it has laid bare its financial records [and] membership lists... has no reason to continue its existence, and no means to afford any further legal representation."

Seeger told the Court that the members of NT First "remain concerned that Wal-Mart, in furtherance of its nationwide campaign to legally attack its opponents, will attempt to force additional disclosures and otherwise terrify its member and officers."

Attorney Seeger warned, "The First Amendment secures Petitioners members' various First Amendment freedoms including... the right to petition the government for redress of grievances." Citing the Citizens United case, Seeger wrote: "disclosure of donations and funding is off limits, except upon a demonstration of compelling state interest." Citing three U.S. Supreme Court cases between the NAACP and the State of Alabama (1959 to 1964), Seeger argued that unincorporated associations are immune from state scrutiny of memberships lists. "At bottom," Seeger said, "Wal-Mart is not entitled to the requested disclosure, unless there is a compelling state interest overriding the First Amendment Protection."

In June, 2011, a group called The Clean Water Advocates of Western New York, led by Cathy Kern, filed a fifth lawsuit under the Clean Water Act in federal court. This suit was originally filed against Wal-Mart, North Tonawanda, and the N.Y. State Department of Transportation. A U.S. District Court Judge signed a consent decree requiring the NYSDOT to comply with its stormwater permit.

To fight her contempt charges, Cathy Kern is now represented by Buffalo civil rights attorney Frank T. Housh. "When Wal-Mart began an illegal, permitless construction of its Superstore," Housh told me, "North Tonawanda First did what citizens groups are supposed to do: they petitioned the Courts for relief. Their efforts were hugely successful. Wal-Mart and its rubber-stamp local government were forced to get a construction permit, divulge its plans to the public, and follow the procedures in the Clean Water Act."

Housh says because of this success, "my clients have been targeted for reprisal. Put simply, Wal-Mart is seeking the bankruptcy and public humiliation of a woman in her sixties who lives alone with her cats because she succeeded in making them follow the law. They want her ruined life to stand as an object lesson to anyone who believes the rules which apply to everyone else apply to the world's largest corporation."

Judge Boniello has made it clear, Housh says, that he may order Kern to pay hundreds of thousands of dollars in fees to Wal-Mart's attorneys. Boniello's Order was stayed pending an appellate court ruling on the propriety of the Judge's Order, which should be issued in the next few weeks.

In December of 2010 -- three months after Justice Boniello's decision to allow Wal-Mart to pursue NT First documents -- the New York Daily News reported that Wal-Mart had donated $10,000 to the Niagara County Republican Committee. NT Mayor Robert G. Ortt, and NT City Attorney Shawn Nickerson -- both strong proponents of the Wal-Mart project -- are Niagara County Republican office holders. So is Justice Ralph Boniello, III, who was elected to the Niagara County Supreme Court in 2001. As of 2010, Boniello's salary is $146,700. The Republican Judge is up for re-election in 2014.

Wal-Mart has used its legal muscle countless times to appeal local zoning decisions to the county courts, to the appeals courts, and beyond. The corporation has more lawsuits than men's suits. In North Tonawanda, Wal-Mart's hounding of local residents for legal fees, membership lists and donor lists, is just another attempt by a 1 percent corporation to chill public participation and to narrow the First Amendment freedoms not just of Cathy Kern -- but of citizen activists everywhere across America.

Al Norman is the founder of Sprawl-Busters. He has been helping communities fight big box sprawl for almost 20 years. His latest book, Occupy Walmart will be released in early May.