2 lawsuits against borough moving through courts

Two entangled lawsuits against the Kenai Peninsula Borough are winding their way through the court system, one toward trial and another toward dismissal.

The borough is fighting two lawsuits orbiting the same issue: the invocation policy controversy at its assembly meetings. The first, Hunt v. Kenai Peninsula Borough, was filed by the American Civil Liberties Union of Alaska in December 2016 and asserts that the assembly’s policy on who can deliver invocations is unconstitutional. That case will be heard in Alaska Superior Court in Anchorage. Assembly member Willy Dunne filed the second suit in early March. Dunne asserted that the borough was unfairly impeding his free speech rights by blocking his publication of an opinion piece in local newspapers explaining his logic on an ordinance to eliminate the invocation.

Borough administrators signed a contract in December with Christian legal nonprofit the Alliance Defending Freedom to obtain free legal representation in the Hunt v. Kenai Peninsula Borough case, and a clause in that contract required the borough to work with the ADF on public representations of the case. When Dunne asked for approval for his op-ed piece, the ADF lawyers did not approve it, at which point he sued, saying the borough’s contract was blocking assembly members from communicating with their constituents. He asked for the court to issue a restraining order to stop the borough from preventing the publication.

“(Dunne) believes that he has the right, if not the obligation, to explain to the public his position on the ordinance he has introduced,” the initial complaint states.

Meanwhile, the Hunt v. Kenai Peninsula Borough case stepped into court for the first time on April 19 in Anchorage. Five attorneys are technically on the case already, three for Hunt and two for the borough, according to online court records, and the ADF will co-counsel with Anchorage firm Brena, Bell and Clarkson, according to its contract with the borough.

The court scheduled the trial week for Feb. 26, 2018 in Anchorage.

The borough’s attorney from Brena, Bell and Clarkson in both cases, Kevin Clarkson, filed a motion to dismiss Dunne’s case on March 29. There is no cause for conflict, he wrote in the motion, saying the borough never formally objected to Dunne’s publishing the op-ed and nothing happened to the borough’s contract with the ADF after he did. Because the assembly never formally entered into the contract, Dunne is not technically a party to the contract anyway, he wrote.

“In truth, the borough has never prevented Dunne from speaking, the borough has no authority to prevent Dunne from speaking, and the borough has repeatedly informed Dunne that he is entitled to speak however he sees fit,” Clarkson wrote. “Not only is injunctive relief inappropriate, but Dunne’s claim lacks a justiciable case or controversy, fails to state a claim upon which relief can be granted, and should be dismissed.”

Clarkson and Dunne’s lawyer, John McKay, exchanged tense emails about the court process, according to case documents. For one, Dunne requested information about the borough’s legal expenses and how much is being paid by the ADF, claiming it was relevant to his legislation. Clarkson and Borough Attorney Colette Thompson argued that Dunne could not act as both a plaintiff against the borough and as an assembly member when obtaining documents. Clarkson expressed this frustration in an email to McKay dated March 21, saying Dunne was trying to “side-step the discovery process,” and in his motion to vacate a hearing scheduled for Wednesday.

“The borough does not wish to permit Dunne another opportunity to improperly try to use a status conference in this case as a vehicle for obtaining information and documents that bear no relation whatsoever to this case,” Clarkson wrote.

McKay asserted that Dunne has the right to obtain documents relevant to his legislative work and should have access to the documents he requested.

“It is simply absurd to state that Mr. Dunne, an elected representative to the Kenai Peninsula Borough Assembly, has somehow forfeited his right (not to mention his obligation) to act as a representative of his district on the Kenai Peninsula Borough Assembly because he filed a suit to protect his constitutional rights to speak freely on matters related to his assembly work,” McKay wrote in an email to Clarkson dated March 21.

The hearing scheduled for Wednesday was vacated, and the court is scheduled take up Dunne’s case again on July 11. The borough assembly approved an additional $25,000 appropriation from the general fund at its April 18 to help cover Clarkson’s attorney’s fees on Dunne’s case because “this is a specialized legal area and the legal department also lacks the time to handle this case in addition to its current workload,” the ordinance states.

Reach Elizabeth Earl at elizabeth.earl@peninsulaclarion.com.

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