Judge denies assembly member’s request for expedited hearing in complaint against borough

An Alaska Superior Court judge has denied a Kenai Peninsula Borough Assembly member’s request for an expedited hearing to block the borough from blocking him from publishing an opinion piece in the media.

Assembly member Willy Dunne of Homer filed a civil complaint in Kenai Superior Court on March 9 after Kenai Peninsula Borough Attorney Colette Thompson told him the borough and the legal contractor representing the borough in an ongoing lawsuit over the assembly’s invocation policy, the Alliance Defending Freedom, did not approve of the content of an op-ed he wanted to publish. Part of the contract the Alliance Defending Freedom drew up with the borough is that the organization wants to see and approve any public statements related to the subject matter of the case.

Dunne sponsored an ordinance that would remove the invocation altogether, which will come up for public hearing at the March 21 assembly meeting. The op-ed he wrote outlines his opinion about it, according to the complaint.

However, before the complaint’s first hearing in Kenai court took place Thursday, the borough filed an affidavit saying Thompson did not say Dunne couldn’t publish his opinion piece, that he had always been free to publish it and that there was no reason for an expedited hearing.

Alliance Defending Freedom Attorney Kevin Clarkson, who is co-representing the borough in the invocation lawsuit, said at the hearing Thursday that the borough hadn’t had time to file an opposition because less than a week had passed between Dunne filing the complaint and the hearing. Because the borough did not object to the op-ed being published, there is no controversy and thus no reason for a court action, Clarkson said.

John McKay, Dunne’s attorney, said the borough changed its opinion after Dunne filed the complaint and that the question remains whether the contract applies to elected officials of the borough. Even though the borough agreed to accept the consequences of what might happen if Dunne published the op-ed and violated the contract with the Alliance Defending Freedom, McKay said Dunne was still concerned that violating the contract would expose the borough financially, and possibly himself as a member of the borough.

He asked Superior Court Judge Anna Moran to order a clarification from the borough that Dunne would not be subject to the clause in the contract requiring the borough to cooperate with public communications related to the case.

“The real issue, your honor, is that there has to be some assurance,” McKay said.

Clarkson countered that the borough did not change its opinion and that Thompson was not acting as Dunne’s attorney, only offering her opinion on the legal outlines of the contract. The financial consequence comes from the fact that the Alliance Defending Freedom is representing the borough pro bono. The risk of the Alliance Defending Freedom withdrawing from its representation of the borough would not fall on Dunne, making his claim that the borough was violating his constitutional freedom of speech rights invalid, he said.

“The consequence wouldn’t be to Mr. Dunne,” Clarkson said. “It would be to the borough.”

What would have happened had Dunne published the op-ed without asking for the Alliance Defending Freedom and the borough’s approval isn’t entirely clear, Clarkson said. However, if the Alliance Defending Freedom chooses to withdraw from representing the borough, it will take some time, as it can’t just sever the contract without ensuring that the borough has adequate representation, he said. There are other public interest law firms that might pick up the contract, he added.

“The ADF isn’t obligated to stay in this case and … Mr. Dunne can’t set the terms for them to stay in this case,” Clarkson said.

He said the main question of the complaint could be picked up later, but asked for the expedited court hearing to be delayed so the borough could have time to clean up and submit its opposition.

Moran said she wouldn’t approve the motion for the expedited hearing because the borough didn’t object to the publication of the opinion piece, so the reason for the quicker hearing was moot. If the ordinance passes without challenge at the March 21 meeting, the invocation will be removed and the point of the case and the lawsuit will be removed, she said.

“Given the state of this particular controversy, anything could happen,” Moran said. “… But it seems prudent not to waste everyone’s time … before we know if it’s even going to be an issue for the parties.”

She said she wasn’t comfortable making a ruling about a contract with a party that wasn’t present or involved, as the Alliance Defending Freedom wasn’t party to the complaint. Dunne is free to publish what he wants to at this point, and any consequence to him will be a political one if his constituents disagree with his actions or what the op-ed says, she said.

Moran set a status hearing for Dunne’s complaint against the borough for at 2 p.m. on March 22.

The complaint is the latest development in a nearly year-long debate over the assembly’s tradition of beginning its meetings with an invocation, which in the past has been largely given by Christian pastors. After the assembly passed a policy dictating who may give the invocations in October 2016, the American Civil Liberties Union of Alaska sued the borough in December 2016 on behalf of two Kenai Peninsula residents, and a third has since joined. The case is currently in state court with a status hearing scheduled April 19 in Anchorage.

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

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