County 'policy' doesn't exist

Leafleting ban not in writing, attorney says

KINGMAN - Is the Mohave County Administration Building and grounds a public forum or not? That is one of many questions circling the argument between Luca Zanna and Mohave County officials.

Zanna and his supporters believe the property is public and therefore an open public forum. The county disagrees.

In November, Zanna was asked to stop passing out leaflets at a town hall held by Sen. John McCain. County Supervisor Buster Johnson and County Civil Attorney Bill Ekstrom told Zanna that the county has a policy that prevents politicking on county property. They pointed to Arizona Revised Statute 11-410.

County Civil Attorney Bob Taylor admitted Thursday that the county does not have a written policy. However, he would not be surprised if other counties had similar policies against politicking.

Gould: County wrong on law

Arizona Sen. Ron Gould weighed in last week when he told the Miner that he received a call from Zanna about the statue. Gould consulted with Greg Jernigan, the attorney who advises the Senate, about the statute.

"The county is interpreting the statute incorrectly," Gould said.

Jernigan told him the statute does not limit the free speech of the public while on public property.

The statute is only part of what the county bases its policy against political activity on county property on, Taylor said. The policy is also based on a long line of cases from the state court all the way to the U.S. Supreme Court that deal with political activity on public property.

There are three types of public property. Which type the county administration building falls under determines whether the building is a public forum or not, he said.

The first type is a traditional public forum, such as a sidewalk, a street or a public park, he said. These are locations that were specifically designed or have long been recognized as places where groups can gather to voice their opinions. The county can only impose content-neutral, narrowly drawn regulations on the time, place and manner of a gathering or protest - for example, a regulation that would prevent people from blocking traffic.

The second type is a designated public forum, he said. This is public property that is not traditionally an open forum but has been opened to the public for a specific event. For example, if the county were to rent the Board of Supervisor's auditorium to someone to hold a candidate debate, then the auditorium could temporarily become a limited public forum. The county could still regulate when, where and how an event could take place, as long as the regulations did not discriminate against or favor one group, Taylor said.

The third type is public property that is not by tradition or by designation a public forum, Taylor said. The courts allow the county more control over this type of public property, as long as the regulations are reasonable and do not discriminate against anyone.

This is the category that the county believes the administration building falls into, Taylor said. The building was not designed or designated to be a public forum. It was designed as a place for the public to do business with the county.

Therefore, the county has the right to impose reasonable restrictions, he said.

A 1986 opinion from the Arizona Attorney General seems to back up Taylor. The opinion deals with the circulation of petitions on public and private property. It details the same three categories of public property.

When referring to public property that is not designated a public forum, the opinion states, "regulation of speech on this type of property is subject to different rules, more similar to those which apply to private property."

The question then becomes whether McCain's town hall changed the status of the building from a non-public forum to a limited public forum.

According to Taylor and the 1986 AG opinion, a hearing by the Board of Supervisors, the Planning and Zoning Commission or a town hall by an incumbent state senator speaking to the public about federal, state or county business does not change the status of the building.

What could change that is if McCain or one of his assistants was passing out campaign information, Taylor said.

Several people have commented on the Miner Web site that they saw people passing out information or asking for petition signatures for McCain's re-election and that a member of McCain's campaign staff was at the meeting.

Taylor said he was not at the town hall so he does not know if anyone other than Zanna was passing out information or if a campaign staffer was at the meeting.

A campaign staffer at the meeting would not change the status of the building to a public forum, Taylor said. A staffer has as much of a right to be on the property as a member of the public.

If the staffer or someone else was passing out campaign literature or petitions, then that could change the status of the building to a limited public forum, Taylor said. It all depends on the activity of the person in question.

When asked about a person who made several political remarks at the town hall and questioned McCain about his actions in the Senate, Taylor said those actions would not convert the town hall to a limited public forum. The speaker was directing his remarks to McCain, not to the public. Zanna was directing his flyers to the public, not to McCain, he said.

"The question is, where do you draw the line? Does the county have to give everyone a soapbox?" Taylor asked. The county may need to look at creating a written policy, he said.