First Amendment Being Ignored In Idaho

First Amendment Being Ignored In Idaho

I mentioned last year the weird case of Chris Pentico, who was charged with trespassing at the state capitol. I tried to get to his trial on these charges earlier in the week, but an email telling about the trial "tomorrow" turned out to be a day late. I'm still gathering data about this, but in brief, Chris (who is the Republican Party chair for the 22nd district, and a really nice person), brought some evidence of at least questionable legal practices involving Boise State University to the attention of the governor, in the form of a written complaint. (It may be worse than just questionable, perhaps rising to the level of illegal, but I'm still waiting on some documents before I commit myself.)

After Chris left the building where the governor's office is located (while the capitol building is renovated), an Idaho State Police officer told him that he was making some legislators "uncomfortable" and he was not to return to the state office buildings. There was no allegation that he was a threat, or had broken any laws. He just made some legislators "uncomfortable."

Chris contacted his representative, Pete Nielsen, who made some inquiries, and couldn't find any evidence that Chris had been banned from the capitol. So Chris returned with some more papers related to his concerns, and dropped them off. A block or two from the state office buildings, he was arrested and handcuffed for violating Idaho Code 18-7011. (You can see the ticket here.)

So what does that section prohibit?

18-7011. CRIMINAL TRESPASS -- DEFINITION AND PUNISHMENT. (1) Any person who, without consent of the owner or person in charge of any lands which are inclosed by fences of any description sufficient to show the boundaries of the land inclosed, shall go upon such lands and shall leave open any gates on or about said premises, or who shall tear down or lay down any fencing, or who shall willfully remove, mutilate, damage or destroy any "No Trespassing" signs or markers, or who shall go through cultivated crops that have not been harvested, or who shall damage any property thereon, or who without permission of the owner or the owner's agent enters the real property of another person where such real property is posted with "No Trespassing" signs or other notices of like meaning spaced at intervals of not less than one (1) notice per six hundred sixty (660) feet along such real property, is guilty of a misdemeanor and on conviction thereof shall be punished by imprisonment in a county jail not exceeding six (6) months or by a fine of not less than twenty-five dollars ($25.00) and not more than one thousand dollars ($1,000) or by both such fine and imprisonment. Where the geographical configuration of the real property is such that entry can reasonably be made only at certain points of access, such property is posted sufficiently for all purposes of this section if said signs or notices are posted at such points of access.

There are no "No Trespassing" signs at the state office building. And indeed, it was so obviously wrong, that I understand that they had to refile the case against Chris three times, trying to find a section that would fit. Chris was convicted this week under Idaho Code 18-7008:

18-7008. TRESPASS -- ACTS CONSTITUTING.

A. Every person who willfully commits any trespass, by either:...

8. Every person, except under landlord-tenant relationship, who, being first notified in writing, or verbally by the owner or authorized agent of the owner of real property, to immediately depart from the same and who refuses to so depart, or who, without permission or invitation, returns and enters said property within a year, after being so notified; ...

Is guilty of a misdemeanor.

Chris' attorney attempted to argue before Judge Swain that there were First Amendment problems with this charge. (I can see both free speech and right to petition for redress of grievances issues.)

I do not dispute that there might be circumstances under which a person could be ordered to not return to a government office--perhaps if there were threats of violence, or actions that constituted harassment. However, prohibiting a person from entering a state office building to complain about improper or illegal behavior by the government requires something more than legislators feeling "uncomfortable." For many years, there was a kook wandering around inside the California capitol holding signs with rather rude language, and the state lacked authority to remove him. A capitol tour guide (who sounded so much like Father Guido Sarducci that I had to resist laughing the whole time) made a point to warn about this, before starting our tour.

This seems at least a clear constitutional question that a judge should not arbitrarily refuse to allow a lawyer to raise: can a peaceable citizen be prohibited from entering a state office building to file a complaint? And what sort of conduct would justify such a prohibition? Chris tells me that Judge Swain would not allow Chris' attorney to even raise this clear First Amendment question.

Nor would Judge Swain allow Chris' attorney to call Rep. Pete Nielsen to testify that Nielsen had informed Chris that he could not find any evidence that Chris was prohibited from entering the state office building. This, at least, would have established that Chris had a good faith basis for believing that he was not prohibited from entering.

Nor would Judge Swain require the prosecution to say who, exactly, prohibited Chris from entering a state office building. The building didn't make this decision; someone who works for the state made this decision--and gets to hide behind the anonymity of "the people."

Now, you may be wondering: Where's the ACLU? Chris contacted the ACLU last year when this first started. You know, First Amendment question: freedom of speech; redress of grievances. But the Idaho chapter wasn't interested in it. (I guess that Chris should have been trying to perform an abortion in the governor's outer office, or demanding a right to marry another man.)

Anyway, it's an interesting problem. I wish that I had been present for the trial. Chris, who is a college student, is really not a position to pay an attorney to appeal this, and the ACLU, at least in Idaho, doesn't do free speech civil rights questions anymore. (At least, they don't do cases like this.) The sentencing date is currently scheduled for May 11, and Chris could get as much as $1000 fine and six months in jail for exercising the right to petition for redress of grievances.

At the Pachyderm Club meeting last night, this miscarriage of justice was brought to the attention of three members of the legislature, who promised to look into this. One member of the lower house and I spoke for a few minutes about this, and about whether Judge Swain's actions might rise to the level of an impeachable offense--but such actions are so rare here that he didn't know if the legislature had the authority to do that. Idaho Const., Art. V, sec. 3, seems to do so.