Mr. Duncan has passed away. I thought it might be a good time to republish this editorial he wrote some time back.
Via Insider Magazine
Editorial: POLITICS
Sunday, June 11, 2000
POLITICS: From Bay County to Beijing, those who make the
peace want most to preserve it, some more peacefully than others.
CLAUDE DUNCAN
The News Herald
John Caylor, a Bay County Commission candidate, recently was threatened with arrest, possibly at a county judge's behest, if he continued to campaign. Soon Kevin Wood, a Clerk of Court candidate who previously had been arrested for attempting to campaign, was in jail. He finally was allowed to make bond Friday, after two weeks behind bars.
People familiar with the two men's often self-righteous crusades and prickly, niggling insistence on a more open and honest county government may note, correctly, that each overstepped the letter of some law, however obscure that law and however arbitrary its enforcement. The same may be said for many people in China and elsewhere whom we routinely describe as political prisoners. Theirs are not lawless governments so much as governments that politicize laws and law enforcement, typically with punishments far more unconscionable than here.
According to The Washington Post, Shao Fenping, 54, is serving a life sentence in a Chinese prison for pasting accusations against public officials to a wal1 in Changchun, a provincial city. The court decided that amounted to "organizing a counterrevolutionary group and participating in a criminal frame-up." John Caylor's public distribution of similarly incendiary campaign fliers has brought him threatened prosecution for "offenses against public peace and order."
Kevin Wood once was expelled from a County Commission meeting by Commissioner Danny Sparks for criticizing Commissioner Carol Atkinson's vote to award a valuable county contract to a political supporter to whom she had important financial ties. Sparks said questioning a public official's performance in office was "too personal." Wood perhaps should be grateful the incident did not occur in Iran, where a probable soulmate, Hoiatoleslann Mohsen Kadivar, was sentenced to 18 months in prison for "confusing public opinion."
In China, many dissidents are imprisoned for breaking laws against "disturbing public order," an ill-defined crime that can range from violence to just being in what authorities consider the wrong place at the wrong time. Bay County authorities have hauled off Kevin Wood for "trespassing" - during business hours, at the courthouse and at Panama City Mall. China officials boldly go where their American counterparts do not tread in terms of punishment. Both, however, see trying to subvert the government as like pornography: They don't have to be able to define it in detail to know it when they see it.
The terms "preserve the peace" and "law and order" are universal throughout the world, although Americans more instinctively interpret them as assuring their own personal safety. They do. But the terms are rooted in English royal law in which "the peace" was whatever accommodations had been made between the king and semi-autonomous nobility that allowed the king and his heirs to remain on the throne, so long as the nobility comfortably shared in the established order that peace had brought about. Before presidential nominees can lead a united party into the fall campaign, they typically must negotiate terms to "make peace" with those they vanquished in the primaries.
At any level of public office, to effectively share authority and influence after their election, incumbents must establish a peace with the powers that be. And if they are challenged by an opponent in an election year, it also is a challenge to the order the incumbents and their supporters established. That is true from Bangor to Baltimore to Birmingham on down to Bay County.
In Bay County, however, the factors that more likely restrain incumbents in those and other political jurisdictions from resorting to intimidation and force to keep the peace - watchdog organizations such as the League of Women Voters, ACLU and taxpayer groups whose numbers and vigilance are respected, and "wise men" such as college presidents, bank chairmen and industrialists whose expressions of dissatisfaction are feared - either do not exist or they are silent.
One result is a pervasive lack of accountability among local government institutions. Individual citizens who seek to fill the void by speaking out at government meetings or delving into public records are not taken as seriously. They are more easily dismissed by officialdom as troublemakers. And, of course, to officialdom they are.
People like John Caylor, Kevin Wood and Randy "Bikeman" Fowler would contend another result is that incumbents have more leeway to use police tactics for political purposes that would not be tolerated in a more civic-conscious community.
This is a bad time for troublemakers. So far as Bay County government is concerned, the peace is threatened as never before.
After so many years of inactivity that most citizens apparently were unaware even that the Florida Constitution authorized and anticipated a role for citizens' review of government, the convening of a grand jury was an astonishing development hardly welcome by any elected official. In an election year, the presence of a grand jury makes preserving the peace a two-front war.
On the grand jury front, everything depends on State Attorney Jim Appleman and his staff to keep the established order. Thus far, the signals are good for the status quo.
Appleman came out fighting. He publicly revealed the names of citizens who tried to make private complaints to the grand jury. He intercepted those complaints he could, so he and not grand jurors would frame issues raised by their content. How he weathered public outrage at his intimidating tampering is not clear, but he did. When Chief Circuit Judge Judy Pittman announced she would send Circuit Judge DeDee Costello to personally remind grand jurors they don't have to depend on Appleman's advice but can get an independent prosecutor not so deeply vested in protecting the status quo, over the course of an extraordinary weekend that was changed, too. On the Monday that Costello was scheduled to appear, she didn't, but the County Commission unexpectedly dusted off the judges' request for a new judicial structure and voted to expedite the matter.
Even as the grand jury pool was being summoned for selection, Appleman maneuvered Circuit Judge Don T. Sirmons to place under psychiatric watch for a year Randy "Bikeman" Fowler. Fowler's habit of tape-recording public officials suddenly seemed a much greater menace than his previously tolerated eccentricity indicated. Nothing suggests that the state attorney thinks he needs a kinder-gentler image to keep the grand jury in tow and keep the peace. His actions perhaps even suggest the opposite.
Given the extremely low level of political participation in Bay County, the grand jurors likely are just ordinary, disengaged citizens who may have their own suspicions about what happens to people who disturb the peace. Certainly they don't seem eager to get involved; their meetings thus far are few and far between. The Florida Constitution asks of them uncommon courage, for sure.
Yet the cat of citizen scrutiny is out of the bag. Citizens will expect that the current grand jury not be the last. Therefore, preserving the peace in Bay County probably hinges on the re-election of Appleman more than anyone else. If only one incumbent could escape opposition, and the others up for re-election were allowed to decide whom, it probably would be the steely state attorney. And so far, so good.
Coming so quickly after the grand jury convened, the recent Panama City Beach elections may suggest to countywide officials seeking re-election that something terrible is afoot on the second front - the ballot box - as well. The beach electorate was so determined to upset the established order that money poured into the campaigns by the lodging barons seemed to help little.
Giants were slain, and on the cheap. In any analysis of the Beach campaigns, the determinative factor in every race merely was that the incumbent or other status-quo candidate had an opponent.
Next to the State Attorney's Office, the institution that can be most protective of the peace is Clerk of Court. It is an innocuous-sounding title, and in two decades of busying himself in the most innocuous of his responsibilities - collecting traffic fines, issuing marriage licenses and such -incumbent Harold Bazzel has effectively neutered the principal thrust of the office as intended by the state Constitution. Had the office been created to efficiently dispense and record duck stamps, the Founders less likely would have seen it as an independent office of public trust so important that it should be subject to popular election.
Rather, along the with grand jury, the 1838 Constitution created the Clerk of Court as part of a system of checks and balances intended as a taxpayer-watch over county spending, most specifically through his investigative power as auditor. The clerk was to stand as safeguard against theft, fraud, inefficiency and incompetence by reviewing and auditing county contracts to assure that the work contracted for was actually done and done in accordance with the contract (and by modern extension in other counties, conform to DEP and other regulatory standards).
The grand jury's investigation of the underwater pipeline contract now under way is a fallback mechanism the Founders provided if the other constitutionally mandated check - the Clerk of Court - became corrupt; that is, did not operate as intended. For that matter, the clerk is a fallback protection for citizens if officials somehow manage to shove aside the grand jury. Had the clerk taken his responsibility more seriously, both the costly pipeline mess in which the county now finds itself and the suspicion the grand jury must confirm or explain away could have been avoided. But the peace would have been unacceptably breached in the process. No wonder Kevin Wood is some's worst nightmare.
What did Kevin Wood do?
On April 16, 1999, shortly after announcing his candidacy, Wood was in the courthouse, he said, to advise an acquaintance who had been arrested, when bailiffs began posting no-trespassing signs around him. The courthouse was Harold Bazzel's realm, but bailiffs said the signs were their idea, not his. Wood was arrested for trespassing in an area of the courthouse that suddenly was as prohibited as Tiannamen Square, in his view; bailiffs said everybody knew only lawyers and others so privileged were supposed to be in there.
Wood was sentenced to six months probation, 100 hours of community service and a $500 fine. In effect, the sentence gave Bay County officials legal authority to monitor his every move. When Wood said he would keep appealing his conviction, officials took that as an invitation to extend their watch ad infinitum.
Almost a year later, Wood was sitting in the public area of Panama City Mall. Whether he was actively soliciting signatures on his qualifying petition for Clerk of Court or whether, as he said, the man with whom he was talking asked to see and sign a petition, is a matter of dispute. In any event, officials deemed it to be illegal political activity on private property. He was arrested and banned from the shopping mall for one year.
When the grand jury was impaneled this spring, Wood began pressuring the state attorney and circuit judges to allow him to present various grievances to grand jurors. He also questioned the judges' prohibition on citizens attending the swearing-in ceremony. He tried to get the names of grand jurors, either so he could determine whether some jurors had disqualifying personal or political connections, or so he could track down and present his grievances personally to the jurors. Wood is irksomely persistent. It was not unreasonable for county officials to assume that, by hook or by crook, he eventually would get access to the grand jury.
On May 25, Wood was thrown in jail and held without bond. He was charged with falling behind in his community service work, with being $130 behind in paying supervision costs, and with being late for an appointment with his probation contact.
Some citizens might think keeping Wood in jail was overly harsh to him and unnecessarily expensive to them. But he did break the law, and criminals jailed for violating probation typically are denied bond. That for a while it appeared he would remain in jail until it was too late for him to qualify as a Clerk of Court candidate, and by which time the grand jury may have called it quits, could seem to some a happy coincidence very much conducive to preserving the peace.
John Caylor's campaign as an independent candidate for County Commission thus far has consisted largely of distributing campaign fliers alleging various wrongdoing, especially by James Finch, both individually and as owner of Phoenix Construction Services, Inc. Caylor has no patience with the County Commission's seemingly determined dependency on Finch's company for county contracts, despite the company's work sometimes falling short of expectations with disastrous or potentially disastrous consequences for the projects' intended performance. The fliers' wording is exceptionally strong, for sure.
In early May, Caylor placed fliers under windshield wipers of vehicles parked at the courthouse. The secretary for County Judge William Cooper, whom Caylor had accused of various derelictions, complained to the Panama City Department of Land Use & Code Enforcement that Caylor was engaged in illegal activity. The Department wrote Caylor a letter citing a city ordinance prohibiting the distribution of fliers and warning that if he did so again, he would be prosecuted. He also could find Judge Cooper presiding. The ordinance cited pertains to "Offenses against public peace and order," specifically "Sec. 17-41. Distributing advertising matter, circulars; acts prohibited." Essentially it says such material is prohibited unless the intended recipient requests it.
Caylor claims the rarely enforced prohibition is an "outlawed unconstitutional ordinance the city knows to be invalid but purposely keeps on the books to suppress unfavorable and politically incorrect free speech." Apparently the Panama City ordinance has not been tested and overturned in court, but when similar ordinances from other cities have been challenged, they have been struck down as an unconstitutional infringement on free speech, politically correct or not.
If Judge Cooper told his secretary to press the city to act, as Caylor claims, the controversy takes on special import. The Florida Supreme Court-written charge to grand jurors read verbatim by Judge Costello on April 19 makes it clear that allegations of interfering with the democratic process must be taken seriously: "If requested by any candidate or disqualified voter, the grand jury, if it convenes during a campaign period preceding an election day, shall investigate to determine if there are any violations of the election code." Florida Statutes adamantly make it illegal for any public official "to use his or her official authority or influence for the purpose of interfering with an election or a nomination of office... ."
Wood is equally adamant that the U.S. Supreme Court has protected citizens' right to exercise free speech by gathering petition signatures in the public areas of shopping malls, which typically are designed to replicate some small-town city center or park or other common gathering place. Indeed, in towns the size of Panama City, the mall is Main Street; there is no other place of similar public congregation. But shopping malls also are privately owned.
In the Pruneyard Shopping Center vs. Robins decision Wood often cites, the Supreme Court ruled that when states declare the mall spaces open to free speech - as had California, where Pruneyard is located - those states do not unduly diminish the owner's property rights or otherwise violate the Constitution. Since the Florida Legislature has not specifically done so, Wood's right was not necessarily protected. If county officials saw him as a trespassing hooligan, technically they probably could throw the book at him under current law.
Does that technicality outweigh the state's prohibition against mobilizing "official authority or influence for the purpose of interfering with an election or a nomination for office?" The grand jury may want to decide. According to the charge read to grand jurors, "You should act according to the dictates of your own conscience and only in the best interest of the citizens of this county." And what is in the best interest of the citizens of this county? Some might think that's asking a lot of one's conscience. Fortunately for grand jurors, they have a legal adviser to frame the question so that the answer is more obvious. His name is Jim Appleman.
And if he didn't think jailing Kevin Wood was in the best interest of the citizens of this county, Wood would not have had to put his signature-gathering campaign on ice for two weeks.
SETTING IT STRAIGHT
Circuit Judge Dedee Costello contacted The News Herald on Monday in response to an essay, "Chinaman's Chance," published in Sunday's Viewpoint section. According to the essay, Costello was expected to address Bay County grand jurors on Monday, May 1, but Costello said Monday there never was any such plan. Costello said she informed grand jurors on April 26, the day it was impaneled, that she was available to them if needed. She said she had no further plans to visit the grand jury unless called upon. However, Circuit Judge Judy Pittman told The News Herald for a story published April 30 that Costello "is going to advise the grand jury when they meet again" on May 1.
(c) The News Herald
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