The American Civil Liberties Union of Vermont said it is seeing a “troubling pattern” in the number of instances where Vermonters have been barred from public spaces or civil forums.
Most recently, on Jan. 10, the organization filed a lawsuit on behalf of former Newport city government employee Andrew Cappello, who was issued a “no trespass” order in August 2021 and barred from city property for one year.
Six days earlier, the ACLU filed an amicus brief to dismiss the criminal charges brought against a Montpelier resident, Stephen Whitaker, who was arrested last year after he refused to stop talking at a June 8 city council meeting. Whitaker was charged with disorderly conduct, resisting arrest and unlawful trespassing, and an additional charge of violating previous conditions of release.
Another case occurred between the city of Burlington and Jason Ploof in July 2019, when Ploof was forbidden from visiting City Hall Park in Burlington for 90 days after he allegedly had an open container in the park on two different occasions.
In the most recent case brought by the ACLU, Cappello, who worked in Newport’s parks and recreation department in various positions from 2009 to June 2021 — including parks and recreation director and parks supervisor — quit his job because of his tumultuous relationship with his bosses, according to ACLU staff attorney Hillary Rich. Public works director Thomas Bernier issued the “no trespass” order, Rich said.
The complaint states that Cappello was issued the order while visiting friends at the Prouty Beach Campground in Newport in August 2021. He was approached by Bernier, who demanded that he leave, the lawsuit contends. When Cappello refused, the complaint alleges, a Newport police officer arrived and issued him the order without any explanation or opportunity to contest it. Capello subsequently called Police Chief Travis Bingham to request an explanation but received none, according to the complaint.
Cappello attempted to petition the city council to lift the notice, but Mayor Paul Monette declined, according to the ACLU. Cappello was unable to volunteer for his children’s sports teams or complete certain tasks at his new job with NorthWoods Stewardship Center, the ACLU said, because they used city property from which he was barred.
Bernier, Monette and Bingham declined to comment.
“When officials abuse their power to restrict access to public life, it really undermines values of civic participation and inclusion that our democracy relies on,” Rich said.
Without procedural protections or criteria for issuing notices on public properties in Newport, Cappello was unable to contest his order — ultimately determining, according to Rich, “who is and isn’t allowed to participate in public life.”
“This case is just the latest example of a really troubling pattern of local officials barring residents from public spaces without due process. And we’ve seen this all over the state,” Rich said.
The ACLU is publicly urging the Vermont League of Cities and Towns and the Legislature to issue statewide guidance on the issue and establish clearer procedures.
Ted Brady, executive director of the Vermont League of Cities and Towns, said “there’s not really a one-size-fits-all solution like the ACLU is asking for.”
Brady said the league doesn’t work for the ACLU and so it doesn’t “respond and do their work for them.”
Deputy Secretary of State Lauren Hibbert said the office doesn’t “provide municipalities with specific guidance or legal advice on any one case or scenario. But we do provide guidance around best practices.”
Hibbert said municipalities’ rules should be reasonable, but the Secretary of State’s Office doesn’t define what that entails. However, Hibbert said members of the public should be made aware of what the rules are, so that they can know what’s expected of them.
Brady said cities and towns have faced difficult situations over the years in trying to “keep order” while also ensuring people “remain engaged” and “participate in the democratic process.”
In certain cases, Brady said, “disruptive people and unsafe conditions require (cities and towns) to use the law to protect the people that work in these places,” adding that there’s been a national trend of hostility and politically charged reactions toward municipal governments in recent years.
Similar to cases that the ACLU has backed recently, Ploof wasn’t able to challenge the no-trespass order. However, the ACLU ultimately reached a settlement with the city, creating a new ordinance governing no-trespass orders and changing policies to guarantee the right to “constitutionally protected activities.”
The ACLU also filed a case in 2012 on behalf of Marcel Cyr, who was banned from attending local school board meetings. The court ruled in favor of Cyr, determining that his free speech and process rights had been violated.
“We’re not asking for the moon here. We’re just asking for cities and towns to honor their constitutional obligations that they have to citizens,” Rich said.
Correction: This story has been updated to correct Lauren Hibbert’s title.