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Assemblyman says borough violated free speech

March 16th, 2017 | Carey Restino Print this article   Email this article  

Dunne files a complaint in Kenai Superior Court

Kenai Peninsula Borough Assembly Member Willy Dunne filed a complaint last week in Kenai Superior Court claiming his constitutional rights to free speech were violated when the borough interfered with the publication of an opinion piece in local newspapers on the grounds that it violated a contract with a law firm representing the borough regarding its invocation policy.

Dunne sponsored an ordinance that would remove a controversial invocation, a pre-meeting prayer typically delivered by a church official, from the assembly's agenda. Dunne's ordinance was introduced last month and will be considered at next week's assembly meeting on March 21.

It's the latest chapter in a long battle between those who want the existing invocation policy to continue and those who say it is unconstitutional. The issue of the invocation first came up in June of 2016, but it wasn't until August, when a woman read a satanic invocation, that the controversy grew. Last fall, the borough voted in favor of placing rules governing who could give invocations — something that had not existed before.

Those rules, which state that invocations can only be delivered by someone representing a religious organization fitting certain guidelines or a chaplain, have now landed the borough in court. The American Civil Liberties Union of Alaska Foundation filed a lawsuit in December calling the policy unconstitutional discrimination. The assembly then approved $50,000 for litigation in the case, and hired Alliance Defending Freedom to represent them.

As part of the contract with the alliance, the borough agreed to let the law firm control all interactions and communications with the media. As a result, Dunne submitted an opinion piece he was planning to submit to local papers on his ordinance to the borough attorney for review. According to the complaint, Borough Attorney Collette Thompson instructed Dunne that he may not publish his opinion piece in the news media serving the borough because it would violate the contract the borough Mayor Mike Navarre entered into with the alliance.

According to the complaint, Thompson asked the alliance to review the opinion piece and was told that despite the fact that it begins with a disclaimer stating that the views are Dunne's alone and do not represent the borough, publication would violate the contract with the assembly.

Additionally, the complaint says, Thompson said she could not say with certainty whether Dunne was allowed to speak to his ordinance at the upcoming assembly meeting.

"Plaintiff Dunne has a constitutional right to communicate with his constituents, his fellow assembly members and with other Borough residents and the public at large, concerning his proposed legislation and other matters relating to the religious invocation controversy," the complaint notes.

On Monday, Dunne said the court wasn't likely to take up the issue until Thursday, too late for local weekly papers to include the opinion piece in their print editions.

"I guess I can't talk too much about it," Dunne said. "Unfortunately, right now there's not much I can say other than I believe my First Amendment freedom of speech rights have been interfered with. I'm really looking forward to some clear and binding ruling on this."

Attorney John McKay, who is representing Dunne in the case, said Tuesday that both state and federal courts have ruled previously on the questions regarding the free speech rights of elected officials.

"It's a right — you don't give up your right to free speech when you are elected," McKay said. "That's counterintuitive. In fact, elected officials could be said to have more rights. They are elected and they are there to speak out for the rights of their constituents."

McKay said there is a question of whether the borough can legally make contracts that apply to elected officials.

"It's an unfair position to put an elected official in," he said, adding that the borough could say that Dunne can publish his piece, but it might cost the borough a lot of money in legal fees due to triggering a breach of contract with the alliance. "We would like to see that contract terminated."

The alliance is an out-of-state organization listed as a Christian nonprofit, which focuses on the promotion of religious freedom, and supports invocations at public meetings as well as religious displays on public lands and in public buildings. The case against the borough by the ACLU is currently pending in the Superior Court for the State of Alaska.

Dunne's ordinance removing the invocation from the borough assembly's agenda will be open for public comment prior to assembly action next Tuesday. The Homer borough annex building will be open for those wishing to testify. Testimony can also be submitted via the borough's website by linking to the Ordinance 2017-02.

Dunne said he is disappointed the courts didn't rule on his case prior to the newspaper deadline and said he looks forward to getting a definitive ruling on the issue.

"I've noticed that all around me, freedom of speech seems to be an issue right now," Dunne said. "I never thought that I would be filing suit regarding freedom of speech — I always have been able to speak openly, and I am a bit dismayed that I would be forced to do this."


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