Why take political sign case to federal court? | Guest Column

By Alex MacLeod

A couple of weeks ago San Juan County Superior Court Judge Kathryn Loring ruled that the county’s law limiting how long before election day political signs could be posted was most likely unconstitutional and she temporarily barred its enforcement.

Her ruling came in response to a lawsuit brought by a Friday Harbor lawyer Nick Power, who not coincidentally is running to replace San Juan County Prosecuting Attorney Randy Gaylord this fall. Her ruling also came as no surprise to anyone paying attention since the Washington State Supreme Court ruled such limits unconstitutional five years before the county enacted its law in 1998.

Such limits are unconstitutional because they are a limit on political free speech, which is at the core of the First Amendment. The limits also tend to work to the political advantage of incumbents, who already enjoy name familiarity among voters. No elected official in the county has more name familiarity than Gaylord, now seeking his seventh four-year term.

It’s a mystery why Gaylord didn’t warn the county council the time limit had been ruled unconstitutional before passing it, but he issued a news release four years later acknowledging that fact. (Editor’s note: In 2002, the prosecutor’s office stated in a press release that the time limitation in the San Juan County Code are not enforceable and will not be enforced.) Because it remained on the books for another 15 years, Power went to court to get it changed (which the council now is doing) and, of course, gain some name recognition of his own in the process.

Since everyone – prosecutor, plaintiff and judge – seemed to agree that the limit was unconstitutional, it could have ended quite simply. But then county auditor Milene Henley, who is responsible for running elections, waded in with a policy statement on the county’s website seeming to dismiss the judge’s ruling and strongly implying the time limit would remain the county’s “guideline.”

On the county website, coming below a posting about the county’s burn permits expiring June 15, and not being signed, it read like official county policy.

According to an audio recording on Friday, June 1, Judge Loring observed that Henley’s statement “undermined” her ruling. Power asked the court to order Henley to remove it from the county’s website. A hearing was scheduled to argue his new request.

With that, Gaylord moved the case to federal court. This clearly is personal between Gaylord and Power. Despite Henley’s statement that it wasn’t her intent to undermine the court, Gaylord has hired Seattle lawyers at county expense to argue in federal court that an elected county official’s speech can’t be constrained in any way, even when it demonstrably undercuts a lawful order of the court in an official, not personal, context.

(Editor’s note: Henley told the Journal that although she hasn’t made a formal statement, she had no intent to undermine the judge’s ruling.)

Really, Randy? If you want to spend your own money to win this argument with the guy who wants your job, fine. But you pay for it. As taxpayers, we’ve already paid far too much to settle legal claims over your 23 years as the county’s chief lawyer. Settle this fight on your own dime, please.

Alex MacLeod lives on Shaw Island. He was the managing editor of The Seattle Times from 1986 until his retirement in 2003.