LACONIA — After a month of deliberation, Judge Jim Carroll of the 4th Circuit Court, Laconia Division has dismissed the disorderly conduct charge lodged against Alton resident Jeffrey T. Clay by the Alton Police.
In his six-page ruling, Carroll said Clay's February 3 arrest by Chief Ryan Heath for telling members of the board of selectmen that were violating the state's Right To Know laws was unlawful.
"The silencing is nothing less that censorship of the defendant's criticisms given at a time and place designated by the board itself for public input," Carroll wrote.
Carroll also paraphrased the 6th U.S. President and framer of the Constitution James Madison, who said the censorial power is in the people over the government and not in the government over the people.
The historic roots of the disorderly conduct case against Clay stem from a series of Alton Selectboard meetings beginning in December of 2013 where Clay was a vocal critic of the board — mostly because he felt they were violating the state's Right-To-Know Laws. He was constantly demanding they resign.
Heath testified in the hearing for dismissal in May that during the December 15, 2014 meeting he asked Clay to leave the room, that Clay obeyed him and the two spoke outside. Heath said he told Clay to be professional and to not mention family members of the members family or threaten the board members.
On January 15, 2015 the board adopted rules for conduct during public comment that forbade obscene, libelous, defamatory, or violent statements from public comment. It also gave the board chair the power to terminate a speaker's privilege to address the board if the speaker doesn't follow those rules of order. The policy also states that the person may be removed from the meeting.
That policy is still in place today, said the executive secretary to the town administrator yesterday.
On February 3, Clay brought a timer in the form of a cell phone to ensure he didn't extend beyond his five-minute time allotment and again told the board member he felt they were not following open meetings laws and should resign.
A member of the board called for a point of order saying Clay's statements were character assassination and Chair Loring Carr began banging his gavel and asked Clay to take his seat in the audience. When Clay continued to speak, the chair requested Heath's intervention and Clay was removed from the room by Heath using an arm hold, charged outside of the meeting room, and put into the custody of a different Alton police officer who processed him.
Carroll said that whether or not Heath's actions were taken independently of the board or in conjunction with it, his actions in arresting Clay "were content-based censorship and the defendant was acting within the very rules promulgated by the board as well within his constitutional rights under the U.S. and N.H. Constitutions."
Clay's attorney Jared Bedrick said, "Judge Carroll used the words censorship a lot."
Bedrick said that the Clay's case was a simple one of freedom of speech while the state "was doing legal gymnastics to make it fit the facts."
"Jeff is thrilled," said Bedrick of his client.
In an earlier interview with The Daily Sun, Clay had noted that his elderly mother was worried that he was going to be a "criminal" and he said now he could call her and tell her he isn't one.
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