CHATTANOOGA — The federal trial of Glenn Whiting versus the City of Athens got underway on Monday.

The lawsuit filed by Whiting claims that Athens officials infringed on his First Amendment right of free speech by retaliating against Whiting for expressing his displeasure with city government — primarily in the form of a sign he posted in October 2019 on the wall of a property he owns on Jackson Street in Downtown Athens.

The sign described Whiting’s dissatisfaction with what he alleges was the mishandling of an investigation by the Athens Police Department regarding a stolen vehicle that Whiting claims he owns.

Whiting’s lawsuit claims that the city condemned a commercial property he owns, located at 213 Pope Avenue, in retaliation for Whiting speaking out against the city. The two city officials who are named defendants in the trial are City Manager C. Seth Sumner and City Attorney Chris Trew, both of whom served in the condemnation process.

In response to these claims, the city denies that the action of condemning the Pope Avenue property was done in retaliation to Whiting’s actions. The city’s defense is that the property was justifiably condemned on the recommendation of its codes enforcement division as part of a routine process that involved multiple other city properties.

The city also claims that it has received multiple citizen complaints about the structure — a warehouse — for years prior to the ultimate condemnation of the property in late September 2019.

After the eight-member jury was seated on Monday morning in the U.S. District Court for the Eastern Division of Tennessee, U.S. District Judge Travis McDonough explained that the trial would require the jurors to make their decision based on the “preponderance of evidence” presented during the civil trial. The trial then commenced with Whiting’s attorney, Van Irion, delivering his opening statement.

Irion described the building condemnation by the city as a “direct retaliation for (Whiting) refusing to be silent.”

Irion said the “timing of events” will be a key to the case and the primary question is did Whiting’s free speech cause the retaliation.

Irion said he will illustrate during the trial that the city rarely levies such an order against a commercial property. He added that the city has the ability to “exercise discretion” in such cases and work with the property owner to resolve issues prior to demolishing a condemned structure.

He also noted that he will show similar properties that are in a greater state of disrepair than the one located on Pope Avenue that were not condemned by the city.

Representing the city are attorneys Dan Pilkington and Emily Taylor. Pilkington delivered the defense’s opening statement.

Pilkington claimed that the condemnation of the property was warranted based on evidence presented during an Aug. 30, 2019 hearing by the city’s codes enforcement officer, Matthew Gravley. Pilkington noted that Gravley, who issued the initial notice of violation on the property on May 21, 2019, had never met Whiting prior to his filing of this lawsuit.

Pilkington also noted that city officials could not be retaliating against the sign on Whiting’s Jackson Street building because it was posted in October 2019, after the order of condemnation was issued by the city on Sept. 25, 2019.

Pilkington also questioned if Whiting had any legitimate claim of ownership in the Pope Avenue property since he is not part of the trust, ARD Property Management, that is documented to legally own the property. Pilkington noted that no member of the trust or Whiting took action on any of the city’s notices regarding the potential condemnation, nor did they attend the Aug. 30, 2019 condemnation hearing, and the city’s decision has not been appealed by the trust.

According to Pilkington, the property “needed to have been condemned … absent anything Glenn Whiting said or did.”

A large portion on the first day of trial was devoted to testimony from Whiting, who was the first witness called by the plaintiffs.

The trust that owns the Pope Avenue property includes Whiting’s wife, as well as his wife’s now-deceased parents. During cross-examination, Pilkington asked Whiting if any formal action had been taken by the trust during a meeting or in writing to officially name Whiting as a member of the trust.

Whiting said no such action had been taken, but he believed he automatically became part of the trust when his wife’s parents passed away. Whiting also noted that he paid half of the original cost to purchase the property.

During redirect, Irion presented a document from the trust that included Whiting’s name. Irion asked Whiting why he was listed in the document. Whiting said the intention was that he would automatically become part of the trust upon the death of either of his wife’s parents.

Whiting admitted, however, that he recently learned that additional steps were required before he could become a trust member and that these steps had not been taken.

During redirect, Pilkington also referred to the document, which stated that it would require a decision of the trustees to either fill the vacancy left by these deaths or to reduce the number of trustees. Whiting again said he was unaware of this until recently and he now agrees that he has never been a trustee.

McDonough discussed the status of Whiting as a member of the trust at the beginning of proceedings on Tuesday morning before the jury was present in the courtroom. McDonough noted that there had not been any evidence presented that Whiting is a beneficiary of the trust, noting that Whiting’s admission that he is not a trustee “very clearly” establishes this fact.

McDonough said that Whiting not being a beneficiary of the trust makes a big difference in what McDonough will allow the jury to hear. The judge also said this issue is “significant” in determining what damages Whiting would be entitled to should he be successful in the case.

In the absence of establishing Whiting as a beneficiary, McDonough said the damages he might receive would be “nominal.”

Following a short break for additional research on this issue, McDonough said all parties agreed that Whiting did not receive any financial benefit from the trust. Irion agreed to move forward in the case seeking only the “nominal damages” described by the judge and that Irion would reserve this matter for appeal.

Trew was called to the witness stand twice on Tuesday — first as a plaintiff’s witness and again as a defense witness. A video recording of a meeting between Trew and Whiting held in Trew’s office on Sept. 4, 2019 was introduced as evidence by both sides.

Whiting recorded this meeting and Trew said he had no knowledge that it had been recorded, but has since read a transcript of its contents. The meeting took place five days after the Aug. 30, 2019 condemnation hearing.

During Irion’s questioning, Trew said the meeting was his idea and was intended to help resolve Whiting’s issues with the city’s police investigation of the stolen vehicle Whiting claims to have owned.

Trew said he also hoped to convince Whiting that posting the message on the wall of his Jackson Street property “wasn’t in anyone’s best interest.” Trew also noted that Whiting had the legal right to post the message and that they “left the meeting on good terms.”

Irion asked Trew if he mentioned the Pope Avenue condemnation during this meeting and Trew said he did. Irion asked if Trew ever implied that if Whiting posted the message on his wall it would lead to the demolition of the Pope Avenue building.

Trew replied, “absolutely not” and added it “became clear the sign was going up.”

On cross-examination, Pilkington asked Trew if Whiting had ever claimed that Trew had made threats towards Whiting during this meeting. Trew said Whiting had made this claim, but Trew insisted that no such threats were made.

Later, when Trew was recalled as a witness for the defense, Pilkington played the entire 25-minute recording for the jury. On the recording, Whiting says that the sign, which had not yet been posted at this point, “would stay up until he’s gone,” referring to then-Athens Police Chief Cliff Couch.

Trew is heard on the recording stating it is “not best for the city to drive by and see this sign. It’s not a good reflection” and might “discourage new residents.”

Trew also said that it would not be a good look for the city police department to “appease Glenn Whiting” with an arrest in the alleged car theft.

Whiting can be heard on the recording saying that he wanted the city to “pay me” and that he would post the sign on his wall “to get that done.”

When the recording was finished playing, Pilkington asked Trew what he heard. Trew replied that he heard himself make no threats and that he heard Whiting say he wanted the city to pay him and to fire Couch.

Trew added, “It was pretty evident I wasn’t going to be successful reasoning with Mr. Whiting” and that he did not try to discourage Whiting from filing any lawsuit.

On cross-examination, Irion said that the clip played in court was not the entire conversation between Trew and Whiting. Trew did not dispute this claim.

At the end of the trial on Tuesday, McDonough dismissed the jury and asked the lawyers if they felt the remainder of witness testimony could be received in one day. Both sides have witnesses remaining since the prosecution was unable to complete its case on Tuesday due to some of its witnesses being unavailable due to illness.

The judge decided to allow the defense to proceed with its case under the circumstances.

Both sides agreed that the remainder of testimony could be received in one day. The judge decided to give the jury the day off on Wednesday and resume the trial today. He said jury instructions could then be finalized today after each side rests its case.

The judge expects closing statements on Friday and then the jury will begin its deliberations.

Email: andy.brusseau@

dailypostathenian.com

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