Borough to settle Dunne free speech case

The court case between a current Kenai Peninsula Borough Assembly member and the borough administration has reached a conclusion.

Willy Dunne, who has represented District 9 to the assembly since 2015, sued the borough in March, claiming his right to free speech was being restricted because the borough attorney told him not to publish an opinion article in local newspapers on the advice of the Alliance Defending Freedom, a Christian legal nonprofit representing the borough in another related lawsuit over the borough assembly’s invocation policy.

Under the terms of the settlement, dated July 3, the borough will pay Dunne $10,000 to partially cover his legal fees. In exchange, the court will dismiss the case with prejudice, which prevents the parties from bringing it back to court even if new information comes out in the future, according to the settlement. Superior Court Judge Anna Moran signed the order July 10, according to court records.

The case arose because Dunne, who had sponsored an assembly ordinance to eliminate the invocation that ultimately failed, wanted to publish an opinion article providing his reasoning in local newspapers. When he submitted the piece to the borough’s legal department for review, Borough Attorney Colette Thompson conferred with the Alliance Defending Freedom, which said it did not approve of the piece. Part of the borough’s contract with the ADF, which Borough Mayor Mike Navarre signed in December 2016, said the borough agreed to cooperate with the ADF in public representation of the case.

Dunne said Thompson told him not to publish, a claim both Thompson and the attorney representing the borough in both cases, Kevin Clarkson, have since refuted.

“The Defendants affirmatively deny that they ever, either directly or through any borough officials, restricted or prohibited Mr. Dunne’s speech or publication of matters he wished to communicate to his constituents, fellow assembly members and other borough and state residents,” the settlement states. “Plaintiff Dunne does not agree.”

After a hearing March 16 in which Clarkson said the borough wouldn’t block Dunne publishing the piece, he did, but the ordinance he was arguing for failed at the March 21 assembly meeting anyway. At a March 22 hearing, Clarkson said the borough planned to ask for the judge to dismiss the case because the point of the suit was now moot.

On March 29, Clarkson filed the motion to dismiss, saying there was no cause for conflict. Dunne’s attorney, Anchorage lawyer John McKay, filed a motion in opposition, saying there were still a number of points requiring clarification from the court, including the fact the Dunne still claimed the borough attorney initially told him not to speak the Alliance Defending Freedom’s contract could be interpreted as enforceable against borough assembly members.

McKay said one of the key issues he and Dunne sought from the court was a clear ruling that this contract couldn’t be used to stop assembly members from speaking about issues related to the invocation policy, either in public or in private, without approval from the Alliance Defending Freedom. Because the language of the contract is vague, it could be interpreted that way, he said.

Although McKay was glad Dunne and Navarre could agree on the settlement, he said it was frustrating that the borough waited so long to settle the case after he and Dunne had said they were willing to settle the case earlier to avoid the additional costs, appropriating an additional $25,000 for legal fees in this case in late March.

“They were willing to spend more money than they had to, both for us and for their own lawyers, just to fight the fact that they could enforce this contract against borough assembly members,” he said. “In some ways, it didn’t affect (Dunne) any more than it affected any other assembly members.”

Neither Dunne nor a representative for the borough could be reached for comment Tuesday.

The lawsuit over the invocation policy, titled Hunt v. Kenai Peninsula Borough, was filed Dec. 14, 2016 by the American Civil Liberties Union of Alaska asking the court to find the borough assembly’s policy setting rules for who can give an invocation before the meetings as unconstitutional. The assembly adopted the rules when a controversy arose after a woman representing the Satanic Temple gave an invocation before the meeting in August 2016.

The trial for Hunt v. Kenai Peninsula Borough is set for the week of Feb. 26, 2018 in Anchorage.

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

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