A Kenai Peninsula Borough Assembly member is challenging a clause included in a legal nonprofit’s contract to defend the borough in an ongoing lawsuit over the assembly’s controversial invocation policy.
Assembly member Willy Dunne of Homer filed a civil complaint in Superior Court in Kenai on Thursday asking for a temporary injunction against the borough administration and Borough Mayor Mike Navarre. The injunction would allow him to publish an op-ed piece he wrote in local newspapers addressing an upcoming hearing on an ordinance he sponsored to remove prayer from the beginning of the assembly meetings. The ordinance, which has several times before been struck down before introduction, narrowly passed introduction with a 5-4 vote at the Feb. 14 meeting and will get a public hearing March 21.
But Dunne was told not to publish the piece, which explained his rationale for wanting to introduce the ordinance, according to the complaint. Publishing his opinion will help contribute to a dialogue that may lead borough residents to communicate with their representatives before the vote, the complaint states.
“(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 complaint states.
Even though the opinion article begins with a disclaimer that Dunne’s views are his own, Borough Attorney Colette Thompson told him that the Alliance Defending Freedom didn’t approve of his publishing the piece, saying in an email to the borough that it violated the contract. Dunne asked for a copy of the email, which she refused, the complaint states. She also said she wasn’t sure if speaking to his ordinance during the March 21 meeting would violate the contract, according to the complaint.
The complaint alleges that blocking the publication is a violation of Dunne’s right to equal protection under the Alaska Constitution and of Dunne’s right to freedom of expression. The complaint asks for a temporary injunction that would allow Dunne to publish the piece before the meeting.
“(Dunne) will suffer irreparable injury to his right to communicate with his constituents and other Borough residents, and to otherwise carry out the responsibilities of his office, unless the Borough is retrained from prohibiting him from publishing his op-ed piece in the news media serving the Kenai Peninsula Borough,” the complaint states.
The American Civil Liberties Union of Alaska filed a lawsuit in December claiming the assembly’s policy on who can give invocations, passed in October 2016, is unconstitutional. The assembly’s policy requires anyone giving an invocation before the meetings to be a member of a religious group with an established presence on the Kenai Peninsula or a chaplain serving law enforcement agencies, fire departments, hospitals or other similar organizations.
Since the lawsuit was filed, the borough assembly members have had to go through the borough and be approved by the Alliance Defending Freedom before communicating with the media. A clause in the borough’s contract with the Scottsdale, Arizona-based group requires that the borough not make any public statements “orally, in writing, via social media, or any other form of electronic communication without first obtaining approval from ADF.”
Another clause states that the borough “agrees to fully cooperate with Alliance Defending Freedom in the publicizing of non-privileged and non-confidential information relating to this representation, including participation in recorded interviews and testimonials.”
“The borough assembly never saw or approved the contract,” Dunne said. “Another question I’m interested in is does this even apply to elected officials? I’m looking for some clear and binding decision by a judge, by the courts.”
Dunne’s attorney, John McKay of Anchorage, said the complaint is asking the court for a temporary injunction and an expedited hearing, given that the hearing on the ordinance is a week away. They’ll seek answers from the court on how far the language in the contract extends, such as whether it only applies to the borough administration or whether it also applies to elected officials on the assembly, and what kind of communication is included, he said.
“Our main focus is that (Dunne) and other assembly members have the right to speak out on issues that are of importance to their community,” he said.
The borough legal department and the Alliance Defending Freedom did not return requests for comment by press time. A hearing is scheduled for Thursday morning.
The Alliance Defending Freedom agreed to represent the borough in its lawsuit about five days after it was filed, on Dec. 21, according to the contract. The Christian-based nonprofit, which primarily litigates issues related to governmental prayer, marriage rights and abortion, represented clients in the Town of Greece v. Galloway case before the U.S. Supreme Court, a similar case in which several members of the public objected to the town council beginning its meetings with prayers, which were primarily offered by Christian pastors.
The court ruled in favor of the town, saying the ritual was open to every religious group, so it was not discriminatory. The case has been cited multiple times in reference to the legal precedent for the borough assembly’s invocation policy.
Reach Elizabeth Earl at elizabeth.earl@peninsulaclarion.com.
