New plaintiff to join lawsuit against borough

The lawsuit against the Kenai Peninsula Borough over its assembly invocation policy is on its way back to state court, with a new plaintiff.

The American Civil Liberties Union of Alaska originally filed its lawsuit against the borough in Alaska Superior Court in Anchorage. Not long after the New Year, Kevin Clarkson, the attorney for the borough, filed and was granted a motion to remove the case to the U.S. District Court in Anchorage, a federal court. Clarkson said the borough opted to move the case to federal court because there were questions of federal jurisdiction because of claims the policy would violate the U.S. Constitution in the complaint.

On Wednesday, Judge Sharon L. Gleason of the Alaska U.S. District Court granted the plaintiffs’ motion to amend the complaint to remove the U.S. Constitution claims and rely on violations of the Alaska Constitution. Removing the U.S. Constitution complaint removes federal jurisdiction on the case because the only question of legality is by the Alaska Constitution, a state document. A second motion, filed simultaneously by the ACLU attorneys representing the plaintiffs, requested that the case be returned to state court. The attorneys filed the motion on Tuesday and Gleason granted it Wednesday afternoon.

“(The plaintiffs) always conceptualized their claims as based principally under the state constitution,” a memorandum attached to the complaint amendment states. “Their federal constitutional claims may or may not precisely duplicate the state constitutional claims, but Plaintiffs prefer to drop the federal claims in order to provide the state courts with the opportunity to interpret and apply the state constitution in this case that raises issues of first impression in state law.”

The amendment also adds a new plaintiff. Elise Boyer, who identifies as Jewish, applied to give an invocation before the assembly on Dec. 22, 2016 but was denied because she is not a current member of a religious association with an established presence on the Kenai Peninsula and is not a chaplain serving fire departments, law enforcement agencies, hospitals or other similar organizations, as required by the policy, according to the amended complaint.

Boyer, who testified to the assembly at its Dec. 6 2016 meeting opposing the invocation policy, called the rules discriminatory and urged the assembly not to spend public money defending the borough from a lawsuit, especially in tight fiscal times.

“You cannot pretend that this (policy) is even-handed and fair,” she said at the Dec. 6 meeting. “It is just not. My heart … wants you to feel what I felt upon learning that the group that represents me made the decision that would exclude me on Kol Nidrei, the holiest night of the year for the Jewish faith, when Jews throughout the world fast and pray, connecting most deeply with God and with themselves in the effort to be better people.”

The lawsuit claims the policy violates the Establishment Clause of the Alaska Constitution, which states that “no law shall be made respecting an establishment of religion.” The invocation policy violates that clause “by running afoul of the governmental obligation of neutrality and deeming only some religious associations to be worthy or providing invocations.” The suit also claims the policy violates the rights to freedom of speech, freedom of association and equal protection under the law.

The ACLU warned the borough in a letter in October, shortly after the invocation policy passed, that it would take legal action if the assembly did not drop the policy or modify it to make it more inclusive. After several back-and-forth votes, the assembly kept the policy as it was originally passed in October, and the ACLU filed its lawsuit on Dec. 14.

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

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