An American City Govt. Seeks the Cruel Power to Keep People off the Streets in... Vermont?
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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.
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.
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 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.