ACLU-VT points to ‘troubling pattern’ in denials of access to public spaces and civil forums

The American Civil Liberties Union of Vermont said it sees a “disturbing pattern” in the number of times Vermonters have been banned from public spaces or civic 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 banned from city property for a year.

Six days earlier, the ACLU filed an amicus brief to dismiss criminal charges against a Montpelier resident, Stephen Whitaker, who was arrested last year after refusing to quit at a June 8 city council meeting. Whitaker was charged with disorderly conduct, resisting arrest and unlawful trespassing, as well as an additional charge of violating previous terms of release.

Another case occurred between the City of Burlington and Jason Ploof in July 2019, when Ploof was banned from visiting City Hall Park in Burlington for 90 days after allegedly having an open container in the park on two separate occasions.

In the latest case brought by the ACLU, Cappello, who worked in various positions in Newport’s Parks and Recreation department from 2009 to June 2021 – including parks and recreation director and park warden – quit his job because of his tumultuous relationship with his bosses. according to ACLU attorney Hillary Rich. Public Works Director Thomas Bernier issued a no-trespassing order, Rich said.

The complaint said Cappello was issued the order while he was visiting friends at Prouty Beach Campground in Newport in August 2021. He was approached by Bernier, who demanded he leave, according to the lawsuit. When Cappello refused, the complaint said, a Newport police officer arrived and issued the order without explanation or opportunity for appeal. Capello then called Police Chief Travis Bingham to demand an explanation, but received none, according to the complaint.

Cappello attempted to petition the city council to overturn the termination, but Mayor Paul Monette refused, according to the ACLU. Cappello was unable to volunteer for his children’s athletic teams or perform certain duties at his new job at NorthWoods Stewardship Center, the ACLU said, because they were using city properties 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 the values ​​of civic participation and inclusion that our democracy is built on,” Rich said.

Without procedural protections or criteria for issuing notices on public lands in Newport, Cappello was unable to contest his order — ultimately, according to Rich, “determining who may and may not participate in public life.”

“This case is just the latest example of a truly disturbing pattern of local officials excluding residents from public spaces without due process. And we’ve seen that across the state,” Rich said.

The ACLU is publicly calling on the Vermont League of Cities and Towns and the Legislature to issue statewide guidance on this 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 calling for.”

Brady said the league doesn’t work for the ACLU and “don’t answer and do its job for them.”

Lauren Hibbert, director of the Secretary of State’s office for professional regulation, said the office “does not offer local government specific guidance or legal advice on any particular case or scenario. But we do provide guidance on best practices.”

Hibbert said local government rules should be reasonable, but the Secretary of State’s office doesn’t define what that means. However, Hibbert said the public should be made aware of the rules so they know what is expected of them.

Brady said cities and communities have faced difficult situations over the years as they try to “maintain order” while ensuring people “remain engaged” and “participate in the democratic process.”

In certain cases, Brady said, “disruptive people and unsafe conditions (cities and communities) require the law to be applied to protect the people who work in those places,” adding that it’s a national trend of hostility and political charged reactions towards local governments in recent years.

Similar to cases the ACLU has recently supported, Ploof was unable to appeal the no-trespassing order. Ultimately, however, the ACLU reached an agreement with the city, issuing a new ordinance that regulates prohibition orders and amends policies to ensure the right to “constitutionally protected activities.”

The ACLU also filed a case on behalf of Marcel Cyr in 2012, who was banned from attending local school board meetings. The court ruled in Cyr’s favour, finding that his rights of speech and trial had been violated.

“We’re not asking about the moon here. We’re just asking cities and towns to fulfill their constitutional obligations to citizens,” Rich said.