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Home » Archives » June 2018 » Auditor Comments On law Suit, Now May Face Judge

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06/03/2018: "Auditor Comments On law Suit, Now May Face Judge"


ig_P_Nick_Power-03small (33k image)

(Nick Power)
A current case in San Juan County Superior Court involving a first amendment case on free speech took an unexpected turn last week after SJC Auditor Milene Henley decided to send out a press release/opinion, on her official county letterhead, in which she commented on the case. That may now require her to appear before the judge to answer some questions as to the appropriateness of her action.

Local attorney Nick Power, a candidate for San Juan County Prosecutor, filed the case, which is related to a county regulation the County has continued to retain since 1998 that limits when, and for how long, political signs may be posted; even thought the county and county prosecutor Randy Gaylord -who signs off on all county codes- know it is unconstitutional.

Local attorney Nick Power, a candidate for San Juan County Prosecutor, filed the case, which is related to a county regulation the County has continued to retain since 1998 that limits when, and for how long, political signs may be posted; even thought the county and county prosecutor Randy Gaylord -who signs off on all county codes- know it is unconstitutional.

Power filed a complaint in San Juan County Superior Court alleging that San Juan County is unconstitutionally infringing on First Amendment rights by enforcing the regulation -SJCC 18.40.400(c)- that limits political signage to be posted only within 45 days of an election.
Judge Loring of San Juan County Superior Court ruled in favor of Power, and entered a temporary restraining order preventing San Juan County from enforcing San Juan County Code 18.40.400(c).
Judge Loring wrote, "Plaintiff had demonstrated a substantial likelihood of success." And further indicated that Mr. Power was entitled to immediate relief because of the nature of his constitutional injury.

Judge Loring granted a temporary restraining order and also ordered a hearing to show cause why the restraining order should not continue. That matter was heard on June 1, 2018 at 3:00 PM., at which time the content of the Henley letter was discussed, with Power suggesting Henley showed contempt for the court ruling by the tone and content of the letter, that e.g. stated the sign prohibition should be viewed as a “guideline,” even thought it is unconstitutional.

Power asked the court to order Henley to retract the letter, and to do so in the media.

Loring asked Jonathan Cain, Senior Deputy Prosecutor for the County, representing the County in the hearing, what his response was to the Power request. Cain said “Wow! I’m astonished and don’t understand how the court could consider that.” Cain said Henley should be in the court and allowed to address the issue before the court could consider any ruling; adding, “she’s not here and I’m not here to represent her.”

Judge Loring said the Henley letter “undermined the court’s ruling,” and asked Cain if he would address the issue, but Cain refused, stating he was not representing Henley. Loring pushed back, stating he represented the County, and the auditor is an elected official. Cain again stated he was not prepared to address the issue.

Cain and Power agreed to continue the hearing, but it was not clear if Auditor Henley will be required to make an appearance to respond to the concerns related to the press release, and if Henley may be ordered to retract what is an official letter.

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