September 19, 2013 | Volume 43, Number 37

Voters to decide charter change

A local debate swirling over “corporate personhood” centers on the long-term implications of a proposed ballot measure.

The initiative would amend the Haines Borough charter preamble and bill of rights by adding language limiting constitutional rights to individuals.

Sponsored by the local We the People group, voters in the Oct. 1 municipal election will be asked: “Should the Haines Borough charter preamble and bill of rights be amended by the addition of the following: ‘We, the people of the Haines Borough, believe the rights set out in the Constitution of the United States and the Constitution of the State of Alaska, like those in this charter, are guaranteed only to individual human beings and do not apply to artificial entities.’?”

About 200 communities nationwide have adopted similar measures as resolutions, including Sitka. About 20 U.S. municipalities have taken a stronger stand, putting such language into local laws. It appears none have been sued for their actions.

The measures have come in the wake of the 2010 Citizens United decision by the U.S. Supreme Court. The court held that corporations have the same First Amendment rights as individuals in terms of political spending.

Borough attorney Brooks Chandler determined clerk Julie Cozzi should issue the petition, as changes to a preamble don’t affect governmental powers and the ability to enforce the law, but merely constitute a general statement of principle.

Future ordinances based on the “spirit” reflected in the preamble, though, could theoretically be unenforceable or unconstitutional, he said.

“For example,” Chandler said, “referencing the preamble would not justify the Haines Borough Police Department to conduct a warrantless search of local tribal offices on the basis of a community ‘belief’ the tribe was not entitled to Fourth Amendment rights against unreasonable searches and seizures.”

  Chandler added that his research indicated only one U.S. Supreme Court case has been based solely on a preamble.

The possibility of future, potentially litigable actions, however, is what has the Chilkoot Indian Association, Haines Chamber of Commerce and Mayor Stephanie Scott opposing the measure.

Scott said she doesn’t see the borough benefiting in any concrete way from the amendment. “My big worry is that the benefit that the Haines Borough might experience from adopting this is possibly a moral benefit. I can’t see realistic benefit that is going to adhere to the community from this change to the preamble. But I do worry that there might be a risk involved, and the risks outweigh any possible moral benefit.”

Scott acknowledged that Chandler does not believe there is any real risk to the way the borough does business, but “there’s that niggling possibility of a problem,” she said.

“The bottom line is I’m going to vote ‘no.’ It’s because I am so conservative when it comes to setting the borough up for legal situations… That’s my fear. Maybe it’s misplaced, but I’m looking down the road.”

Chilkoot Indian Association (CIA) tribal administrator Dave Berry said tribal members aren’t necessarily afraid of the immediate effects of the amendment, but think it goes in a direction toward the tribe losing rights.

“They’re just not willing to stand by and do nothing if this could potentially ruin their status as a tribe and if it could do anything to affect the membership’s rights and privileges,” Berry said.

The seven-person tribal council voted unanimously to oppose the amendment. Berry said the tribe has an “institutionalized fear” of the government stripping it of its rights, and voting “no” on the amendment is a way to stop the government from taking a first step toward that end.

Resident and former history professor Jerry Pyle spoke at the Sept. 13 Chamber of Commerce lunch, warning against passage of the amendment. Pyle told the crowd the change would be a “no-win situation,” and wrote in a recent letter that the likelihood of the borough being taken to court is “extremely high.”

Pyle said the borough shouldn’t sacrifice itself as a test case and risk being sued for contradicting federal law, as it could mean “huge out-of-pocket expenses, maybe in the millions of dollars.”

Berry and Pyle share a belief the matter should be handled in the state and federal realms, not at the borough level. “Why does it have to be this little community?” Berry said. “Let someone else take the test case to court. Use someone else’s money.”

The Chamber of Commerce also voted Tuesday to place an ad in the CVN urging residents to vote “no” on the amendment. Chamber board member Brenda Jones said she also fears passage of the amendment would put the borough on a slippery slope toward taking away the Constitutional rights of corporations, labor unions and non-profits.

“This is the first step for them. This isn’t the final step,” she said.

Jones characterized the initiative as an “attack on the economy” by the same “extremist preservationists” in the community that oppose hydro development and road improvements.

“Go after your BPs. Go after your mega pharmaceutical companies. Why attack those that are your friends and neighbors?”

Activist and We the People member Gershon Cohen said if the amendment would set the borough up for a lawsuit, borough attorney Chandler never would have authorized clerk Julie Cozzi to certify the petition.

  “If the borough attorney thought there was a significant legal liability, he would have told the clerk not to certify the petition. That’s his job. That’s what (Cozzi) asked him to do,” Cohen said. “Why that’s not good enough for certain segments of the community is a question they have to answer.”

  Berry said the tribal council read Chandler’s memo, but decided they didn’t want to take any chances. “Potentially nothing may happen, but they are not willing to stand by and wait and see,” he said.

  Cohen said all of the rhetoric involving the threat of a legal suit introduces “a factor of fear into this that isn’t appropriate.”

  “I think the chances of us being taken to court for a belief and have it actually be a litigable offense is somewhere around one in 10 million. I don’t believe there is any merit to that being a concern,” Cohen said.

Pyle contended during his Sept. 13 presentation that a statement of belief can be interpreted as a creed and therefore be litigated.

Cohen said members of We the People were unable to attend the Chamber of Commerce lunch where Pyle spoke due to scheduling conflicts.