CONCORD — Alton government critic Jeffrey Clay’s attorney argued before the state Supreme Court on Wednesday that his client’s actions during a 2017 selectmen’s meeting did not justify his arrest and subsequent conviction for resisting arrest and disorderly conduct. But the attorney representing the state countered that Clay’s conviction was valid, and pointed to his record of showing contempt for the rules which members of the public are required to follow.
During oral arguments before a three-judge panel, Clay attorney Jared Bedrick – trying to get the conviction overturned – said his client was seeking only to address some remarks to the Board of Selectmen during the public comment section and that his actions did not constitute disorderly conduct.
He further argued the resisting-arrest charge against Clay was improper because his client did not wantonly refuse to comply with the arresting officer’s instructions, but rather was only confused as to his status.
“He didn’t know what he was violating at the time,” Bedrick told the justices. “(This appeal) is about what his purpose was. He was just trying to take three minutes to discuss what was on the agenda.”
Clay is appealing his January 2018 conviction by District Court Judge Michael Garner, who found Clay guilty of disorderly conduct for not leaving the selectmen’s meeting as then Selectmen Chairman Cydney Johnson instructed, and guilty on a charge of resisting arrest when Clay failed to leave his place at the meeting table when told he was under arrest.
To a question from Associate Justice James Bassett about whether Clay was engaging in disruptive behavior during the meeting, Bedrick replied, “He was using disparaging language. But,” he continued, “he can’t be arrested for speaking disparaging words.”
Bedrick further argued that Clay’s arrest for resisting arrest was a stretch.
He said Clay was confused about whether Alton Police Sgt. William Tolios was placing him under arrest, or merely detaining him prior to arrest.
Senior Associate Justice Gary Hicks interjected, “If police came in here right now and pick me up and pull me out, I’m not supposed to know that I’m supposed to follow their orders?”
“That’s pretty clear that you’re in custody,” Bedrick answered. “But the test of Sgt. Tolios was that (Clay) thought he was not in custody. If the command from law enforcement is essentially ‘Stay put,’ or the circumstantial evidence is all that’s used to justify the case, there’s a reasonable basis that he was confused, (and) then we have to dismiss the case.”
But Senior Assistant Attorney General Susan McGinnis said Clay’s actions should not be seen in isolation, but in light of the totality of his actions during the meeting at which he was arrested.
“He committed disorderly conduct by disrupting the orderly conduct of a public meeting and recklessly creating a risk of public alarm. Given his prior behavior,” she continued, “there’s no reason (to believe) that he’s getting on a topic. He’s just ranting at the board.”
Whereupon Bassett, a former selectman, said, “If we were to forcibly remove everyone who doesn’t follow the rules or everyone who speaks out of order, you’d never get very far in most meetings.”
“That's not what happened here,” McGinnis replied. “(Clay) was not only refusing to address the topic, but he was also engaging in really disruptive behavior while other people were speaking and being extremely aggressive, and so they asked him to leave because he was violating the rules which he knew, and had done research on.”
Bedrick acknowledged that Clay and Johnson were “not on the same page” when it came to whether Clay was addressing an item on the agenda for that particular meeting.
The justices took the case under advisement at the conclusion of the 25-minute hearing. They gave no indication when a ruling will be issued.
In order for the three-judge panel to render a decision, their opinion has to be unanimous. If they differ, then the case will have to be referred to the full court for a decision.