The story from Burlington VT, 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.
“Secrecy, being an instrument of conspiracy, ought never to be the system of a regular government.”Â — Jeremy Bentham
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. Â The ordinance allows the immediate and arbitrary banishment of people from public streets with no due process of law and no effective appeal process.
In part, councilors with doubts about this ordinance had them assuaged 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 City Attorney’s office analysis 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.”Â — 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. Â 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 the Mayor was Bernie Sanders, now Vermont’s junior U.S. Senator.
Attorney Franco produced a five-page, single-spaced analysis dated June 4, in which he concluded that “this ordinance is neither lawful nor constitutional.”Â He has reinforced this conclusion with a three-page supplemental analysis
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.”Â Blais went on to argue that “this is not a question of transparency,”¦Â [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 Mayer 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 hearing 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.”Â — Patrick HenryÂ
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. Â 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.
Some of Franco’s arguments, all of which he supports with case law citations, include:
*Â 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.
*Â 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. “
*Â The city ordinance fails to set any standards for guidance in it’s application, enforcement, or appeal.
*Â 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 the factual basis therefore, and an opportunity to be heard before it takes effect. Our ordinance provides none of that.”
*Â The ordinance offers no effective judicial review. It contradicts and pre-empts 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.”Â — John F. KennedyÂ Â