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Judge rejects effort to block recall election of 3 Homer City Council members

  • Author: Devin Kelly
  • Updated: December 2, 2017
  • Published May 23, 2017

Homer and the Homer Spit (Loren Holmes / Alaska Dispatch News)

An Anchorage Superior Court judge on Tuesday denied an attempt to block a recall election for three Homer City Council members who sponsored an "inclusivity resolution" that originated as a critique of the policies of President Donald Trump.

In a ruling late Tuesday afternoon, Judge Erin Marston said he agreed with Homer city attorneys that elected officials can't claim First Amendment protections as a shield against a voter-initiated recall. While governments must comply with First Amendment protections on freedom of speech, private parties, like those seeking the recall, don't have that obligation, Marston wrote.

The city can proceed with the special election set for June 13 in Homer, Marston wrote.

The recall alleges Homer City Council members Donna Aderhold, David Lewis and Catriona Reynolds are unfit for office.

The recall petition also says that Homer suffered "irreparable economic harm" when a draft of the resolution surfaced online and was widely circulated. The draft resolution, which was written by a former Homer newspaper reporter and criticized Trump's policies on immigration, the Mexico border wall, civil rights and other issues, resolved to "resist any and all efforts to profile undocumented immigrants or any other vulnerable population."

A firestorm erupted when the draft resolution became public on a community page on Facebook. Many in Homer wrote letters saying the resolution was unnecessary and inflammatory, and accused the council members of using their positions to promote political activism.

The actual final copy of the resolution that came before the City Council in February was much shorter and made no mention of Trump or undocumented immigrants. It failed, with only Reynolds voting in favor of it.

Shortly after, the recall petitions were filed. The petitions also cited a resolution the council members voted for last fall that expressed support for the Standing Rock Sioux Tribe and opposed the construction of the Dakota Access pipeline.

The council members argued that their work on the resolutions constitute free speech, not misconduct that the Alaska Constitution requires for a successful recall.

In late April, the American Civil Liberties Union of Alaska filed suit to block the recall. Eric Glatt, an attorney for the ACLU of Alaska, argued in court Monday that voters will be able to express themselves in the next scheduled general election.

But attorney Eric Sanders, representing the city of Homer, said the First Amendment isn't a broad shield for the activity of elected officials.

In his decision, Marston agreed. He said the recall petitioners don't have the same responsibility to honor First Amendment protections on speech as the government.

"First Amendment protections against abridgment of speech by the federal or state government do not apply to actions by private citizens. The City of Homer did nothing to suppress speech," he wrote.

The bigger issue, he said, is that voters should be allowed to decide.

"The voters determine whether or not the grounds for recall have been satisfied or not," Marston wrote.

A spokesman for the ACLU, Casey Reynolds, said Tuesday afternoon that attorneys were still reviewing Marston's decision and hadn't had a chance to consult with the council members to decide whether they would appeal.

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