BURLINGTON — A group of Burlington lawyers is requesting the suspension of a city ordinance authorizing the removal of people from Church Street for unruly behavior.
The attorneys sent a letter to Burlington City Council members and Mayor Miro Weinberger claiming that the current enforcement of the city’s no-trespass ordinance violates due process.
The letter is a response to the Burlington Police Department’s release of enforcement records from April 26 to June 9. The letter was written by John Franco, a private attorney and former assistant city attorney, along with Jared Carter and Sandy Baird of the Vermont Community Law Center.
“In my view, one of the bedrock principles of our government is that everybody is entitled to due process of the law,” said Carter wrote. “What we think this ordinance does is totally eviscerate that.”
First-time public-nuisance offenders receive a no-trespass citation, banishing them from Church Street for 24 hours. Because the Church Street Marketplace Commission is closed on weekends and holidays, appeals might not be possible until after the 24-hour ban has been served, according to the letter.
According to the ordinance passed in February, the first offense is a 24-hour no-trespass notice, which increases to 90 days for the second offense and one year for a third.
Carter said that the city should face a costly legal battle if the ordinance’s constitutionality is challenged in court. “What is the benefit of risking it?” Carter asked in an interview.
William “Chip” Mason, D-Ward 5, who chairs the Ordinance Committee, said the committee will discuss the constitutionality of the ordinance this fall.
Mason will not consider a suspension of the ordinance unless it is proposed by another council member or is recommended by the city attorney.
For now, the letter will go on the council’s consent agenda.
According to council procedure, it is not possible to introduce a resolution between now and the council’s meeting Monday.
Aside from the obstacles to appeal the 24-hour trespass citation, Carter said the ordinance is unconstitutional for other reasons.
He said the Church Street Marketplace Commission is composed of Burlington business owners, unlike the unbiased judge and jury of one’s peers in the traditional courtroom.
“That’s not impartial, those people have an interest in the outcome,” Carter said.
He said Burlington’s homeless and mentally ill have been disproportionately affected by the ordinance.
According to one to the police records, on May 15, a person violated the ordinance by using “abusive and obscene language,” causing a “public inconvenience.”
After a June press conference voicing concerns on the ordinance’s constitutionality, John Franco said that under the Title 13 of Vermont State Statue on disorderly conduct, the case would have been thrown out for lack of probable cause.
The Ordinance Committee is scheduled to report back to the council with their reconsideration of the no-trespass ordinance no later than October this year. This will mark a renewed debate ordinance’s constitutionality.
CORRECTION: Chip Mason says he was misquoted in the original version of this story. He did not say he wasn’t worried about a legal challenge; he will not propose a resolution; he also believes the ordinance is good policy.
