Confidential town ordinance allows police to ban people from public streets
Burlington, VT - The story from Vermont, of all places, is breathtakingly simple: the elected city council, in a bi-partisan vote, has decided to keep its law-making process secret, rather than openly address the question of whether a draconian no-trespass law it passed last winter is patently unconstitutional.
That's right, rather than explain why the law it passed is constitutional, the Burlington City Council is hiding behind lawyer-client privilege as if it - the council - were some private corporation rather than a democratically-elected local government.
Burlington city attorney Eileen Blackwood argues, according to Seven Days, that her office's legal analysis is protected by attorney-client privilege, in a construct where both the attorney and the "client" work for the City of Burlington. Protected by privilege, she has asserted, the legal analysis "must thus be treated as confidential."
Council member Chip Mason reponded: "There is no dispute that it is protected by the attorney client privilege. The City Council is the client for whom the memorandum was prepared."
The ordinance in question, the "Church Street Marketplace District Trespass Authority," passed the City Council unanimously in February 2013. The council vote followed seven public hearings at which some concerns were raised and addressed, but no controversy arose. The ordinance allows the immediate and arbitrary banishment of people from public streets with no due process of law and no effective appeal process.
Councilors with doubts about this ordinance had them assuaged, in part, by an analysis of the proposed law written by Assistant City Attorney Greg Meyer in mid-2012, assuring the council that it was within its constitutional rights to ban people from public streets and without authority to do so from the state legislature. That analysis by the city attorney's office was, and is, secret from the public.
Since the law went onto effect in March, Progressive Party members of the City Council began to have misgivings about its constitutionality. They requested - and received - permission from the city attorney to show the secret legal analysis to an outside counsel, John Franco, who served as a Burlington assistant city attorney from 1982 to 1989, when Bernie Sanders, who is now Vermont's junior U.S. senator, was mayor.
Attorney Franco produced a five-page analysis dated June 4, in which he concluded that "this ordinance is neither lawful nor constitutional." He has reinforced this conclusion with a three-page supplemental analysis.
Franco argues that the Constitution does not permit Marketplace commissioners to act as judges. In an interview last week, he also noted that the ordinance allows no-trespass citations to be issued in cases where a person has only been charged with an offense, not convicted of it. "That's a blatant violation of due-process rights," Franco said.
At issue is an ordinance that does something very different. It purports to make unlawful
otherwise lawful use of a public right of way by individual members of the public simply by dint of a no trespass order issued by a City official. In other words, it is the issuance of the no trespass order itself that purports to convert the otherwise lawful use of Church Street by the subject individual to an unlawful use. This is an important distinction insofar as the U.S. Supreme Court has recognized that members of the public have a constitutionally protected liberty interest to be in parks or on other city lands of their choosing that are open to the public generally. City of Chicago v. Morales, 527 U.S. 41 (1999), “An and individuals’ decision to remain in a public place of his choice is as much a part of his liberty as…the right to move ‘to whatsoever place one’s own inclination may direct."
Based on Franco's analysis of the ordinance, the five Progressive Party members introduced a resolution at the June 10 council meeting seeking to make the secret city attorney's office memo public.
Democrats fought the motion fiercely. Democrat Norm Blais, an attorney, made it personal, speculating irrelevantly that the resolution derived from "politicians' remorse." Blais went on to argue that "this is not a question of transparency ... there are sound reasons for having privileged communications with an attorney."
While attorney-client privilege is widely recognized in law, Blais made no effort to explain how it applied to this governmental situation, where Democratic mayor Miro Weinberger had made a campaign promise of greater governmental transparency.
Council member Chip Mason, also a Democrat and a lawyer, chaired the committee that held three non-controversial public hearings on the ordinance. At the council meeting he defended the "sanctity" of attorney-client privilege, calling it "not something we should be waiving."
Some of Franco's arguments, all of which he supports with case law citations, include:
Vermont law requires municipalities to have authorizing legislation from the state legislature before enacting a law such as the no trespass ordinance. Burlington has no such authorization, leaving the ordinance without legal authority.
Under the law, Burlington does not "own" its streets, nor does it control them except as such control is delegated by the state. The streets quite literally belong to the people and no government may legally banish people from the streets without stringent adherence to constitutional standards.
As Franco writes, "Our ordinance allows Burlington officials to issue what effectively are prior restraints on the exercise of an otherwise lawful fundamental constitutional right, and to discriminate among 'offenders' with broad and virtually unfettered discretion to banish some, but not all, offenders and for varying lengths of time. "
The city ordinance fails to set any standards for guidance in its application, enforcement, or appeal.
The ordinance violates the U.S. Constitution's requirement of due process of law. "Due process requires notice of the proposed action, notice of the City's factual basis therefore, and an opportunity to be heard before it takes effect. Our ordinance provides none of that."
The ordinance offers no effective judicial review. It contradicts and preempts several state laws. And the disposition of its penalties is left in the hands of a panel of untrained non-lawyers from whom there is no provision for further appeal.