Except in the Trump Administration and Doña Ana County, a key principle of our country is due process: the government can’t take away a right without fair notice, a fair hearing before someone neutral, and a route to appeal.
If they think you stole something, you get a court trial with a lawyer, and can appeal. Taking someone’s welfare benefits or medical license also requires “due process.” That distinguishes us from the Nazis, Saddam, or Attila.
The First Amendment to the U.S. Constitution is important. It’s first. You have a right to free speech, although it can be limited in schools or jails. Public input at the city council or county commission is a “limited public forum” at which you have a right to speak. That’s a Constitutional right the Supreme Court has long recognized.
You also have a First Amendment right to videotape officials at work, including police officers, although ICE might kill you for exercising that right in Minneapolis. Surprisingly, our county might jail you for it.
A local gadfly videotaped county officials more than they wanted to be videotaped. County Manager Scott Andrews and Interim County Attorney Cari Neill got angry and sent him a “trespass” letter purporting to ban him from county meetings for vaguely-alleged intrusive videotaping. No specifics; no hearing; no appeal.
That’s unusual. The courts have held that banning someone from county public-input requires due process: clearer charges, a fair hearing, and an appeal procedure. When folks pointed that out, Andrews/Neill said they were the bosses and knew what they were doing. I doubted that.
When the trespassed citizen attended a meeting, wearing a comical false mustache, and waiting quietly in line to speak, they called police. LCPD declined, perhaps wisely. When they called Sheriff Kim Stewart, she probably had no choice. She’s said on radio she had to act, whether she agrees with county officials or not. The citizen was then arrested and jailed – and kept in jail for a day.
Preparing this column, I repeatedly asked the county officials about their conduct. I’d litigated this stuff as a lawyer since before they were born. And any fool can ask Chat GPT “What due process is required constitutionally for a county to ban a citizen from public meetings?” I’d also talked to relevant organizations. But I figured maybe I’d missed something. I sent them a long letter asking appropriate questions. Pathetically, they said they couldn’t say anything at all because there might be a lawsuit. I’ve rarely seen a public entity that unable to address such an issue. Most good lawyers, when you ask them to explain their positions and the legal support, do so readily – to convince you or learn their weaknesses. These folks’ silence isn’t a great sign that they have a clue.
This is scary, not just because it may illegally abridge rights, but because it’s downright stupid and could be costly. Whatever your views on Project Jupiter, how these folks handled it broke or narrowly skirted law. One commissioner was appalled by an agenda packet full of blank or unfinished pages, and having just two days to read pretty extensive material.
This ain’t like banning your drunken uncle from your backyard. A normal citizen shouldn’t have to pay attorneys to enforce rights. If you have just cause, prove it. Further enforcing this novel idea they can ban annoying people from public input without due process, could cost the county dearly.
Peter Goodman's opinions are his own and do not necessarily reflect the views of KRWG Public Media or NMSU.