Burlington City Council members are divided over releasing a legal opinion that justifies the cities new power to ban people who behave badly on Church Street. Some council members say releasing the opinion would create transparency and help clarify why the law is needed.
"We'd like to have that out there alongside the city's position so that people understand, what are the core issues, what are the arguments on either side so that if the city moves forward with that, people have confidence that it is constitutional," said Councilwoman Jane Knodell (P-Ward 2)
The no trespass ordinance gives Burlington Police the authority to ban anyone for an open container, disorderly conduct, drug possession, or unlawful mischief -- problems they have faced in the past. So far 20 no-trespass notices have been issued. Two people have been arrested for violating those notices. Violators may be banned for up to a year, but have the right to an appeal.
"The marketplace is a public entity created by the charter -- the city's charter -- and from the city's perspective and looking at this and looking at the constitutionality of this, this a legitimate way to look at how one governs public space," said Burlington City Attorney Eileen Blackwood.
Blackwood says the Burlington City Council is her client and that there is not obligation to release the opinion under attorney-client privilege.
But Knodell, along with other council members, turned to former city attorney John Franco, to review the ordinance. He says the council should release a public opinion and should also reconsider the ordinance altogether. "The towns and cities only have the power to do things with the streets and highways that the legislature has given them, and the legislature has not given the City of Burlington, or any other community, the authority to do this kind of trespassing ordinance," he said.
Opponents of the ordinance have also raised questions about due process.
"Let's say they want to challenge it, they put in an appeal and the order is stayed -- immediately -- until they have a chance to have due process," Blackwood said.
But the offender doesn't go before a judge, they go before the Church Street Marketplace commission, who Franco says, is not the same as a court.
Blackwood says going before a judge means being arrested -- a step the city is trying to avoid. Franco says the next step is to stop the city from enforcing the ordinance. "We're going to try to get the city council to suspend enforcement or repeal it. If that doesn't happen, somebody who gets prosecuted or charged under this thing is going to have to challenge it," Franco said.
Blackwood says a public memo responding to Franco's concerns will be released soon. Until then, the city will continue to enforce the no trespass ordinance on Church Street.
The Burlington City Council will hold a press conference Monday morning to address the no-trespass ordinance.
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