Flagstaff's Dirty City Council Campaign

by Dan Frazier and Lisa Rayner

On May 1, 2004, a group of five Flagstaff residents held a protest on the sidewalk outside of City Council Candidate Eldon Kramer's home. The protesters included local activists Dan Frazier, Lisa Rayner and Bill Buell. The protest coincided with a scheduled Republican open house at Kramer's residence. The event, publicized in the Daily Sun calendar, was billed as a chance for the public to meet local and state candidates.

Lisa Rayner and her husband Dan Frazier are perhaps best known for the now-defunct newspaper, Flagstaff Tea Party. Their protest signs said, "Dirty Campaigning is Undemocratic" and "Kramer and Krug are Krooked! Kelty and Cooper are Kool!"

Frazier now runs a bumper sticker business and has created bumper stickers for two council candidates, Al White and Kara Kelty. He has also assisted Kelty in the creation of campaign signs and with the design of some of her campaign literature. In addition, he has donated $20 to each of the four incumbent council candidates. However, he is not involved directly with any of the campaigns of the coucil candidates. He and his wife came up with the idea for the protest on their own.

Also among the protesters was Bill Buell, an 81-year-old Flagstaff activist. Also on hand were two twenty-something female protesters who did not give their last names or provide contact information.

The protesters gathered outside Kramer's house about 3:30, after car-pooling from Wheeler Park where they had been participating in Earth Day festivities. Though an open house was supposedly in progress at the Kramer residence, there were few cars at his house and no sign that an event was in progress. The protesters gathered with their signs on the sidewalk on the corner of Kramer's property (just off Butler Ave.).

Though there were few passing motorists, the protesters did get some thumbs up signs and other positive feedback from passers-by. After a few minutes, Eldon Kramer drove past the protesters, returning home in a hurry.

Shortly afterwards, a man stopped to talk to the protesters. He said that he felt sorry for the protesters and that politics in Flagstaff had sunk to a new low when people start protesting outside of a candidate's house. He said that he had been undecided about whom to vote for but now he was sure he would vote for those candidates the protesters opposed. During a televised report about the incident that aired the next day, this man was quoted and identified as Mike Souris. Souris is a realtor ( http://www.sourisharris.com/index.html ). He is also a co-owner of Video Espresso. Souris donated $150 to Kramer in October. It appears that he may have been the very first person to make a donation to the Kramer campaign. He donated $500 to Citizens for Sensible Government in March. In May, he appeared dressed as a cook in a flier mailed by Citizens for Sensible Government.

About 4 p.m., as the protesters were about to leave, Souris returned to the scene and urged the protesters not to leave, saying that a TV news crew was on its way. The protesters were not sure the man could be trusted, and decided not to stay.

On May 5, two detectives visited Dan Frazier and Lisa Rayner at their home in response to a police report filed by Eldon Kramer. (See links below.) The detectives cited the couple for "Residential Picketing." ARS 13-2909. According to the statute, "A person commits residential picketing if, with intent to harass, annoy or alarm another person, such person intentionally engages in picketing or otherwise demonstrates before or about the residence or dwelling place of an individual, other than a residence or dwelling place also used as the principal place of business of such individual. ..." Residential picketing is a class 3 misdemeanor punishable by up to 30 days in jail, one year probation and a fine of $500.

However, jail time is unlikely according to ASUA legal services. Read How to survive a misdemeanor charge -- prepared by ASUA legal services.

The detectives gave Dan and Lisa a copy of a case involving residential picketing (State v. Baldwin, 184 Ariz. 267 (App. 1995)) The case involved an abortion opponent who directly confronted an obstetrician/gynecologist outside of his home. The woman, who carried a Bible, told the doctor he was "going to hell for killing babies." Read more (you will need to sign up for free trial to Loislaw).

The anti-abortion protesters actions were far removed from the actions of the protesters outside of Eldon Kramer's house. At Kramer's house, the protesters never spoke to Kramer, nor did he speak to them. The protest was directed mostly at passersby, and not necessarily at Kramer. This is quite different from the case involving the abortion protester. A close reading of the residential picketing statute suggests that the Kramer protesters never violated the law as it is written.

Dan Frazier believes the law is an unconstitutional infringement on his First Amendment rights. He has requested the assistance of the ACLU. Read his letter to the Arizona chapter of the ACLU.

Dan and Lisa were instructed to appear in Flagstaff Municipal Court on May 12. On May 10, a local attorney filed a plea of "not guilty" on behalf of Dan, Lisa and Bill. The pleading also requested a jury trial. A court date has yet to be set.

The two young women who also protested outside of Eldon Kramer's house have not yet been cited by police as their identities and whereabouts remain unknown. The police are seeking the public's help in locating these two women who were known to the other protesters only as Ruth and Charlotte.

June 23 update: Dan Frazier, Lisa Rayner and Bill Buell made a brief and uneventful appearance in Flagstaff Municipal Court on June 4. At this pre-trial conference, prosecutors offered us plea-bargain agreements, which we all declined. Lisa and Dan were told they could plead guilty and pay only a $100 fine. Bill was told he could pay a $100 fine and get "deferred prosecution," meaning that if he behaved himself for a few months, charges against him would be dropped. None of us wanted to pay the fines. We all wanted to fight the charges in court. Our court dates remain as shown above. However, we are still hoping to consolidate the cases. (See update for June 26.)

In other news, the AZCLU has declined to take our case, sending what amounts to a form letter declining the case for standard reasons, none of which seems valid. I suspect they are simply overwhelmed and understaffed. Fortunately, we have a good local attorney handling our case at no charge to us.

June 26 update: The trials for Dan Frazier, Lisa Rayner and Bill Buell have been consolidated. The trial will be Tuesday, July 6 at 3:30 p.m. in Flagstaff Municipal Court, 15 N. Beaver St.

July 6 update: Today a Flagstaff judge cited a lack of evidence and dismissed charges against three Flagstaff residents who had been charged with "Residential Picketing." The charge stemmed from a protest held May 1 outside of the home of City Council candidate Eldon Kramer. Kramer, who lost the election by a wide margin, was the first to testify at today's trial. Mike Souris, a Kramer supporter who witnessed the protest and spoke to the protesters, also testified, along with Detective Matt Wright. The three protesters were prepared to testify. However, they were not called upon to speak.

The case hinged in large part on whether or not the protesters had intended to harass Kramer with their protest. According to the statute, "A person commits residential picketing if, with intent to harass, annoy or alarm another person, such person intentionally engages in picketing or otherwise demonstrates before or about the residence or dwelling place of an individual, other than a residence or dwelling place also used as the principal place of business of such individual. ..." The defense argued that the protest was directed primarily at passersby, and not at Kramer or any other occupants of Kramer's home. The defense also noted that the protest occurred at a time when a public meeting was to have been held at Kramer's home. The meeting was to be a chance for the public to meet Republican candidates. The meeting was advertised in the Arizona Daily Sun.

Kramer claimed that the meeting had been organized by his wife and that it had been canceled. Kramer also claimed he felt harassed. He noted that two of the protesters (who were not identified or brought to trial) had worn masks or scarves over parts of their faces. He also recalled that one of the protesters had taken a picture of his house, which added to his discomfort.

The lawyer for the defense was John Gliege assisted by his daughter Stephanie, a recent law-school graduate who helped research the constitutionality of Arizona's Residential Picketing statute. Gliege filed a Trial Memorandum with the court. The ten-page memo explains why the statute is unconstitutional on its face, and how other similar statutes have fared when challenged in various courts, including the Supreme Court. Download an early draft of the Trial Memorandum (Microsoft Word format). This draft contains a few typos.

The Arizona Residential Picketing statute allows for picketing in a residential area only if the person being picketed conducts a business out of their home. Gliege noted that Kramer's home was effectively his campaign headquarters and that Kramer conducts some personal business from his home, such as managing investments. Gliege also noted that applying the law under these specific circumstances would appear to be an infringement of the First Amendment right to free speech about political matters.

At the conclusion of the hour-long trial, Presiding Magistrate Judge Thomas L. Chotena issued a directed verdict dismissing the charge against the protesters. He cited a lack of evidence that the statute had been violated.

If the protesters had been found guilty of the class 3 misdemeanor, they could have faced a fine of up to $500 and/or up to 30 days in jail. The defendants had several supporters onhand in the courtroom, mostly local political activists. The defendants and their supporters were all smiles when the meaning of the judge's verdict became clear.

The protesters plan to petition the state legislature in the hopes of changing the residential picketing statute. They would like to see a provision allowing for protests outside the homes of political candidates under certain circumstances.

Read Dan Frazier's July 9 correspondence with 'Uncle' Don Fanning about the trial, the verdict and how people can get involved to change the law.