Something has been bothering me about the Canutillo flag debacle and Hunt’s involvement in it. At first, I wasn’t able to pinpoint exactly what was bothering me about it. Although it surprises me that a military city like El Paso has had such a muted (corrected typo on 18feb15 at 11:05ET) response to the flag controversy it really shouldn’t because it has been my assertion that Hunt has been able to control the public commentary through the effective control of the news media outlets. The flag controversy would be headline news in any other city, except El Paso.
What I finally realized that was bothering me the most is that Canutillo acceded to Hunt’s demand to remove the flag clearly proves that at least one government entity is subservient to a public entity’s demands. Let me explain.
One of the hardest things I have had to comprehend about US jurisprudence is that it is based on precedence. The law may clearly spell something out but the application of the law is based on previous interpretations and applications of the law. The law evolves based on previous court rulings not what a layperson would read it to be.
For example, in intellectual property law, a court will look at how a copyright holder has defended the use of their copyright material previously in rendering a decision on a copyright case. As an example, if I bring a claim against a blogger for using one of my images on their website, the blogger would likely use, as part of their defense, other users using my image and what I did about it. If the blogger successfully shows that I selectively enforce my copyright then the judge may use that against me as mitigating circumstances even going so far as to rule that I allowed the copyrighted material to enter the public realm because I did not enforce my copyright properly.
In other words, the judge may find that my copyrighted material is fair game because I did not limit its use by others, although the law states that I have a right to control how I let others use my intellectual property. By not enforcing my copyright I am giving up the right to protect my intellectual property.
Many of you are aware that government entities routinely use the concept of sovereign immunity while defending themselves against lawsuits of wrongdoing. If a municipality takes land under eminent domain, the likely and usually effective defense is sovereign immunity. That is why it is often difficult to sue a government entity. The government has authority that the public does not have.
In the flag debacle, the Canutillo school district is a government entity. It has the power and authority of the constituency that elects trustees to the board and pay taxes to sustain it. They have the authority to take land if it can prove it is necessary for the benefit of the community. As a government entity, it has at its disposal the defense numerous authorities vested on government by the laws including the concept of sovereign immunity.
Yet, the school district has allowed itself to become subservient to a private entity, in this case, Hunt Development by first agreeing to conditions stipulated in its land purchase and again by allowing itself to be forced to remove the colors of the flag from one of its buildings.
I realize that many school districts enter into covenants when purchasing land for schools. This is normally part of the purchase agreements. However, in the case of the flag, it is my opinion that the Canutillo school district completely subjugated itself not to the constituency that pays its bills but to a private entity that should have no say on the colors the school building should be painted.
It should be the taxpayers that determine whether the red, white and blue at the school is appropriate, not a land developer. This simple fact is troubling to me because the notion of Democracy is being usurped by a private and unelected overseer determining what is appropriate for a school or not.