Guest Column: Making a federal case out of it is costly to taxpayers Featured

A couple of weeks ago the county’s 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 law suit brought by a Friday Harbor lawyer, Nick Power, who not coincidentally is running to replace 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 is a mystery why Gaylord didn’t tell the County Council its political-sign law had been ruled unconstitutional before it was passed in 1998, but he penned a news release four years later acknowledging that fact and said the county would not enforce the time restriction. But because it remained on the books for another 15 years, Power went to court to get it changed and, of course, gain some name recognition of his own in the process.

Since everyone — prosecutor, plaintiff and judge — all 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 web site seeming to dismiss the judge’s ruling and strongly implying the time limit would remain the county’s “guideline.”

Coming right below a posting about the county’s burn permits expiring June 15 and not being signed, it appeared to be official county policy.

I happened on her statement a day before Judge Loring did. I wrote Henley a quick, polite email and encouraged her “to reconsider how you present the court action and ‘guidelines.’ Pretty simple to do: A court recently threw out the county’s political sign ordinance, saying it infringed on free-speech rights, so now candidates are free to post signs as far ahead of an election as they choose. Period.”

Henley responded that her statement was not “intended to take a position on the court case.” Intended or not, I wrote back, it did. “I read it as taking a dismissive position on the court case, which is your right (free speech) but is not what you say was your intent.” I suggested again that she change her language to match what she said was her intent.

The next day, at a previously scheduled hearing, Judge Loring observed that Henley’s statement “undermined” her ruling. Power asked the court to order Henley to remove it from the county’s web site. A hearing was scheduled to argue his new request.

When I learned about that, I wrote Henley again: “I see Judge Loring seems to have read your piece similarly. You might want to consider posting a retraction/clarification today (Monday) so as not to put the prosecutor’s office in the position of trying to defend you.”

What I overlooked is that this is personal between Gaylord and Power. Despite Henley’s statement that it wasn’t her intent to undermine the court by saying the county would continue to treat the 45-day time limit as a “guideline,’ if it couldn’t treat it any longer as a law, Gaylord decided to make a federal case out of the issue He’s hired Seattle lawyers at county expense to argue in federal court in Seattle 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.

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.)

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