UNION-TRIBUNE
July 3, 2008
11-SD-005 PM 66.3-68.3 N/B.
No, that's not a mistake.
That's my lead.
It's Caltrans code for an irritating tumor the transportation department appears unable to cut out of its highway shoulder.
Weird as it is to anthropomorphize a state bureaucracy, you have to feel sort of sorry for poor Caltrans.
The San Diego Minutemen, the ragtag border patriots with strong North County ties, appear to have Caltrans in a legal stranglehold over an Adopt-A-Highway permit at the Border Patrol's San Clemente checkpoint.
I confess, my predictive powers weren't exactly Olympian when this dust devil blew up on Interstate 5 early this year.
Obviously, Caltrans had made a bone-headed error in November by granting a litter cleanup permit to the Minutemen at that politically sensitive location, or, to be perfectly precise, 11-SD-005 PM 66.3-68.3 N/B.
Ironically, the Minutemen hadn't even asked for the checkpoint site. They originally requested a stretch on state Route 78.
Under strong pressure from Latino legislators in Sacramento, Caltrans Director Will Kempton revoked the San Clemente permit and offered the Minutemen a remote location on Route 52 near Santee.
My mistake was believing that Caltrans could finesse this PR snafu. I underestimated the grit of the Minutemen in pursuing a free-speech lawsuit. I did not anticipate the cavalry charge of a capable legal advocate, former North County Assemblyman Howard Kaloogian.
Last week, a federal judge handed the Minutemen a decisive victory, ordering Caltrans to restore the San Clemente permit as the lawsuit is playing out in court.
Judge William Hayes concluded that Caltrans had denied the Minutemen their First Amendment rights while overstating the prospects of violence at the checkpoint.
Hayes granted Caltrans 30 days to restore the permit and erect courtesy signs honoring the Minutemen for their civic service.
Bottom line, Caltrans screwed up twice:
First, by granting the cleanup permit to a controversial group at a politically loaded location. (Whoever made that tone-deaf call should go back to building roads.)
Second, by allowing Latino legislators to force a reversal that was bound to raise free-speech questions and throw red meat to the publicity-hungry Minutemen.
It's not as though there wasn't a road sign readily available on Google. After seven years of legal wrangling, the U.S. Supreme Court in 2001 let stand a federal court ruling that forced Missouri to include the Ku Klux Klan in the state's Adopt-A-Highway program. (The ACLU was on the side of the KKK.)
What fair person – or competent civil rights lawyer – is going to argue that the Minutemen's ideas or actions have been more provocative than the KKK's?
On Monday, Kaloogian said he was working on yet another lawsuit alleging that Caltrans discriminated against the Minutemen by denying requests for locations other than in Santee.
Caltrans rules allow up to 10 permits per district, Kaloogian said. The Minutemen have scored so many points with the San Clemente site, it appears, that they would like to run the table.
In Kaloogian's view, Caltrans is throwing up roadblocks, again raising the question of state-sponsored discrimination based on unwelcome ideas, not illegal conduct.
I called Caltrans to see what it makes of the judge's decision, the San Clemente lawsuit, the legal complaint promised by Kaloogian, and what it has learned about the San Diego Minutemen in the past five months.
In late January, Caltrans served notice to the Minutemen that their new permit in Santee could be yanked if Caltrans found that the anti-illegal-immigrant group was violent, advocated violence or discriminated in their ranks.
In other words, if the Minutemen are as bad as Latino and civil-rights groups allege, they couldn't pick up trash under Caltrans' auspices anywhere.
Honestly, I didn't expect much. Bureaucracies are notoriously wary of speaking their minds. (George Orwell had plenty to say on that subject.)
But the response, while constrained, was still interesting. The Minutemen, it seems, have forced Caltrans to rethink the entire anti-litter program:
Here's the e-mailed statement:
“The Department is in the formal process of reviewing and developing new guidelines for its Adopt-A-Highway Program. Because of this action, the processing of all applications has been temporarily suspended until the guidelines become available. This means that available portions of state freeway with program permit applications pending will remain unadopted and existing permits will remain in effect until completion of the regulatory process. Due to ongoing litigation, the Department has no comment at this time regarding the San Diego Minutemen.”
Reading between the lines, Caltrans is evidently unwilling to admit that it was wrong and ready to settle for peace. It's searching for some legally defensible way to rewrite the rules and fend off the attacking Minutemen.
How many taxpayer dollars will be blown as Caltrans, an agency commissioned to build and maintain roads, struggles to determine who, and who is not, good enough to pick up trash on the shoulders of the highway?
Logan Jenkins: (760) 737-7555; logan.jenkins@uniontrib.com.
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