Image above: Mel Rapozo talks with proponents of controlled distribution of medical marijuana during an anti-drug rally in front of the historic County Building. From original article.
A day after the County of Kauai pulled out of an anti-drug rally it had planned to host, County Attorney Al Castillo said the county is no longer in danger of legal action from the American Civil Liberties Union. The ACLU on Wednesday wrote to the county to raise “serious legal concerns” about using public funds to host a partisan event.
“We have duly noted the concerns of the ACLU and will certainly consider them in light of future action on these bills and others,” Castillo said via an e-mail from county spokeswoman Beth Tokioka.
Tokioka added in a separate e-mail that because the county resolved the issue, Castillo no longer anticipates any further action from the ACLU.
“I don’t think we’re planning to reschedule it from the county side,” she said.
The Kauai Police Department, County of Kaua’i Anti-Drug Program, Office of the Prosecuting Attorney, and local community organizations had first advertised they would sponsor the event.
The demonstration was intended to raise awareness and inform the community of dangers associated with pending marijuana legislation, according to a county press release.
County councilman Mel Rapozo, acting as a private citizen, reinstated the rally following the county’s cancellation Thursday morning. It was held that afternoon in front of the Historic County Building.
ACLU’s complaint
In a letter sent to Castillo and KPD Chief Darryl Perry, the ACLU urged the county to cancel or postpone the rally because it believed county employees were “acting outside the scope of their limited, delegated authority, thus exposing the county to litigation,” and faced liability under the First Amendment. The complaint was accompanied by a 16-page-description of an ACLU lawsuit against City and County of Honolulu prosecuting attorney Peter Carlisle regarding a similar matter.
“The issue with the upcoming rally is not about the individual police officers, prosecuting attorneys and other county employees expressing their viewpoints,” the letter states. “It is about the potential use of public resources (including time and labor of county employees) to do so.”
The ACLU letter alleges that neither the police department nor the prosecutor have the authority under the county’s charter to use public funds to advocate for a particular political position; and that using public resources to fund the rally could expose the county to liability under the First Amendment.
Castillo said the county hasn’t run into this problem before.
“County officials involved have previously spoken publicly against these measures and these concerns were never raised,” Castillo said.
Much ado about press releases
The trouble began after the ACLU learned of the county’s first press release regarding its plans to hold the rally.
It includes a quote from County Prosecutor Shaylene Iseri-Carvalho, who stated that if the proposed marijuana bills passed, they would result in increased violent crime, economic crisis, and a higher rate of marijuana usage among children. It also stated that police chiefs and prosecuting attorneys from the four counties stand united against this “dangerous legislation.”
“It cannot be disputed that the overriding purpose of the rally is to persuade constituents to lobby legislators to vote against the pending bills, HB 1169 and SB 58,” the ACLU wrote in its complaint letter.
Citing Stanson v. Mott in the California Supreme Court, the ACLU argued that the expenditures for such matters would raise potentially serious constitutional questions.
“The Stanson court, after reviewing the relevant jurisprudence in other jurisdictions, explicitly limited the department’s campaign activities to neutral informational messages stating … ‘A fundamental precept of this nation’s democratic electoral process is that the government may not ‘take sides’ in election contests or bestow an unfair advantage on one of several competing factions,’” the complaint letter stated.
Cancellation tug-of-war
Hours before the rally began, the county sent a press release stating it was canceling the rally due to a flash flood warning. Then the county issued a second release stating that the ACLU complaint was also a cause for the sudden cancellation.
Rapozo said the county couldn’t stop the event, which he had originally scheduled.
“To use the weather as an excuse is unacceptable,” Rapozo said Thursday. “The reason for the cancellation wasn’t the weather. It was the ACLU’s concerns.”
Attempts to contact ACLU were unsuccessful.
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