City Seeks Power to Banish People
By William Boardman, Reader Supported News
17 June 13

ecrecy, being an instrument of conspiracy, ought never to be the system of a regular government." - Jeremy Bentham
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.
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.
"Every thing secret degenerates, even the
administration of justice; nothing is safe that does not show it can
bear discussion and publicity." - Lord Acton
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."
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, single-spaced
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.
"Children love secret club houses. They love secrecy even when there's no need for secrecy." - Donna Tartt
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."
In response to an inquiry to explain how an elected
government body could be the legal equivalent of a private corporate
client, Mason wrote only that: "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 liberties of a people never were, nor ever
will be, secure, when the transactions of their rulers may be concealed
from them." - Patrick Henry
The Progressives' resolution to make the secret memo
public lost in an 8-5 vote, with the majority comprising all six of the
council's Democrats, its only Republican, and its only Independent. The
council then unanimously referred the issue to committee.
After the vote, City Attorney Blackwood offered to
prepare a new legal analysis of the ordinance for public consumption.
She did not explain why releasing the secret analysis wouldn't conserve
public resources and be just as useful.
There is as yet no rebuttal by the city council or the
city attorney's office to Attorney Franco's assessment. As it stands,
unchallenged, his critique is devastating, finding that the city has
acted in violation of both the Vermont Constitution and the U.S.
Constitution.
"The best weapon of a dictatorship is secrecy, but
the best weapon of a democracy should be the weapon of openness." -
Niels Bohr
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.
"The very word 'secrecy' is repugnant in a free and
open society; and we are as a people inherently and historically
opposed to secret societies, to secret oaths, and to secret
proceedings." - John F. Kennedy
Reader Supported News is the Publication of Origin for
this work. Permission to republish is freely granted with credit and a
link back to Reader Supported News.