The city of Burlington is seeking to remove both the attorney and the client from a lawsuit challenging its no-trespass ordinance, according to motions filed in Vermont Superior Court this month.
Sandra Baird, a Burlington resident and member of the Vermont Community Law Center, filed a lawsuit against the city challenging the legality and constitutionality of the Church Street Marketplace Trespass Authority ordinance authorizing the removal of people from the Church Street Marketplace for unruly behavior.
In the suit filed in August, Baird stated that as a city taxpayer, she was harmed by the misuse of public funds in adopting and enforcing the ordinance, which she said violates constitutional protections and due process procedures.
But because she has not been charged with a trespass citation, the city stated she has not been harmed and therefore does not have “taxpayer standing.” If her standing is dismissed, she would be unable to bring the case against the city.
In her response, Baird states Vermont Supreme Court precedent gives legal standing to taxpayers. Also, because Church Street is “the beating heart of both Burlington, and indeed of the State of Vermont as a whole,” limiting access to this public space violates her First Amendment-protected free speech activities, she stated.
The city’s response to the suit also aims to remove John Franco, the attorney representing Baird in the case, from the case entirely.
The city claims Franco has a conflict of interest because he has represented the city — by providing a legal opinion on the trespass ordinance to members of the council — and is now representing a client against the city on the same ordinance.
Franco’s response stated he was not representing the city on the ordinance. Instead, he was advising four council members “personally” on “policy and political advice,” he said.
In his court filing, he stated the city is trying to obtain a “tactical advantage in the case” by removing him.
“The city’s actions speaks for itself,” Franco said, referencing the city’s request to remove both himself and his client from the case, which could end the lawsuit without resolving questions concerning the ordinance’s constitutionality.
“I was hoping they would file an answer and we could have some of these issues resolved,” he said.
Both Franco and his client have requested a hearing before the court. Franco said if the court chooses to hear oral arguments, it would likely occur early this winter.
The Ordinance Committee was assigned earlier this summer to report back to the council with recommendations on the trespass ordinance no later than October. The council will then decide whether to change it, rescind it or leave it alone.
Chip Mason, D-Ward 5, said the committee’s hearing on the issue has been stalled because of the current lawsuit.
This summer, the committee was scheduled to have a meeting on the ordinance. The meeting was canceled because Franco was on vacation, committee members have said.
A meeting on the issue is not planned, said Mason, who chairs the committee. He said until the lawsuit is resolved, the council will not received any recommendation from the committee.
