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." -- Patrick Henry
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.
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:
* 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.
* 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. "
* The city ordinance fails to set any standards for guidance in it's application, enforcement, or appeal.
* 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."
* 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. " -- John F. Kennedy
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