City of Asheville unsuccessfully tries to sanction journalists’ lawyer for records requests

The City of Asheville had warned attorney Ben Scales not to keep pushing his requests to force dozens of city employees to testify at a criminal trial. Officials had argued the attorney’s subpoenas were “patently improper,” that they subjected staff to “undue burden and expense,” and “deviated from applicable legal standards.” They’d told him that if he kept asking the court to make them comply, they’d seek sanctions.

On Monday, city officials made good on their threat. They asked a Superior Court judge to sanction Scales, the attorney for two journalists at the self-described “leftist” news outlet The Asheville Blade who were convicted of trespassing in April for covering police as they broke up a protest and homeless encampment on Christmas night 2021.

“The City has twice provided Mr. Scales with notice that subpoenas issued by him in this case were legally deficient and improper,” John B. Maddux, the deputy city attorney, wrote in a court filing. “Mr. Scales response has been to file two motions clearly intended to act as backdoor motions to compel compliance with improperly issued subpoenas, and then to issue twenty-four subpoenas to City personnel regardless of whether those personnel possess any information relevant to the case.”

Scales’ clients, Matilda Bliss and Veronica Coit, are appealing their misdemeanor convictions in a jury trial scheduled to begin next week. Their case — and the cases of 16 activists charged with felony littering for the items they left in Aston Park that evening — have become a flashpoint in the city’s treatment of its homeless residents and how its responds to scrutiny, with advocates claiming its actions undermine Asheville’s progressive reputation.

Scales’ lengthy list of subpoenas included people who weren’t at Aston Park that night, including Debra Campbell, the city manager, and Jes Foster, Asheville’s solid waste manger, whom The Asheville Blade reported this week had expressed skepticism about the felony littering charges filed against the protestors.

“Criminal defendants are entitled to their day in Court, and the City fully respects all defendants’ constitutional rights, including the right to confront their accusers,” Maddox wrote. “Those rights, however, do not provide Mr. Scales with the unfettered right to abuse his authority to issue subpoenas to unduly raise the costs of prosecution and waste the Court’s time.”

Scales has argued the wide-ranging subpoenas are necessary to show a jury that Asheville police knew who Bliss and Coit were that night, and targeted them because of their political ideology.

The court declined to sanction Scales, but it did grant the city’s request to quash his subpoenas, except for those of officers and individuals who were at Aston Park that night.

The ruling means that Scales’ motion to force the city to produce more discovery was denied. The court also declined to continue the case — meaning it is still scheduled for a jury trial next week — and denied his motion to dismiss the case.

In a motion file on June 5, Buncombe County Assistant District Attorney Robert A. McRight argued that prosecutors had fulfilled their legal obligations to turn applicable records over to the defense, stating that much of what Scales is asking for is “a host of wholly irrelevant material” that doesn’t have anything to do with whether Bliss and Coit were trespassing at Aston Park in 2021.

“Defense Counsel or the Defendants themselves may desire a laundry list of information — which may or may not exist — for filings in other forums or for personal aspirations, political or otherwise,” McRight wrote. (Scales has run against McRight’s boss, Todd Williams, twice to be Buncombe County’s district attorney.)

“But those matters are not before this Court, those matters are not relevant to the proceedings docketed for June 12, and those matters are not discoverable,” McRight argued. “Defense has presented no legitimate basis for further delay of the subject trials. While publicly decrying the waste of time and resources surrounding these cases Defense now seeks filings, responses, and motion dates ad infinitum despite the actual matters before the court being relatively straightforward.”