2016 VT 6
By Thomas M. Kester
Trespass is one of those ancient, dusty, “from the days-of-old-when-the-knights-were-bold” laws at common law, that allowed recovery from anyone causing unlawful injury to a person, property, or rights involving violence (for the more inquisitive legal or historical minds, read up on “trespass on the case” or “case” to see some good-old-fashioned tort law at work).
Nowadays, “trespass” has been hacked down to encompass issues that involve interference with one's possession of property. Fast forward hundreds of years to 2015 and we find the City of Burlington adopting the “Church Street Marketplace District trespass authority” that prohibits certain activities in the Church Street Marketplace District (“Marketplace District”). But the real meat of this story is about another equally antique, but still relevant, legal concept: standing.
Let’s start with the facts. Marketplace District is a quasi-public entity that has business-owner members and promotes the Marketplace District (you know—that area around Church Street in Burlington). The SCOV describes this place as a “hot spot for social gatherings, street performers, protests, speeches, and marches, many of which are impromptu in nature” or pre-planned from GroupOn.com. The Burlington Police Department (“BPD”) patrol the area and all state criminal statutes and city ordinances apply as well.
The City Council adopted a trespass ordinance in February 2013 and it became effective in March 2013. The Council observed and responded to a “perceived increase in the number of ‘homeless or itinerant persons’ in the Church Street marketplace” by proposing this ordinance. The enforcement provision of the ordinance is an “immediate administrative sanction” that translates to the BPD being allowed to issue a notice of trespass to anyone “who is ticketed for one of four underlying violations: (1) ‘disorderly conduct’; (2) ‘unlawful mischief’; (3) ‘[p]ossession of an open or opened intoxicating liquor’; or (4) ‘[p]ossession of a regulated drug.’”
A lot of the ordinance’s language mirrors the elements of the criminal charges codified in the statutes. Each subsequent notice of trespass issued expels the person for more time from the Marketplace District, with one day for the first offense, up to ninety days for the second, and up to one year for the third. There is an exemption provision that allows a cited person to apply for a waiver for “work, residence, access to government services, [and/or] the exercise of constitutionally protected activities.” I find it ironic that you can get a waiver to exercise your constitutionally protected activities, as I’m sure no one has ever been cited for disorderly conduct who was just exercising their constitutionally protected activities in the first place (there may be a wee bit of sarcasm in my previous statement).
The appellants in this case are two professors, both Burlington residents and licensed attorneys. Both also frequent Church Street and don’t like the ordinance. Here is the important part: neither of them has received a Marketplace District notice of trespass. In August 2013, appellants filed suit seeking an order that states the trespass ordinance is both unconstitutional and beyond the power of the city council. The City of Burlington (“City”) filed a motion to dismiss for lack of standing, arguing that neither appellant has been injured by the ordinance. The trial court granted the City’s motion after a one-day hearing for lack of standing and subject matter jurisdiction. The appellants went to the SCOV in an attempt to have the trial court decision overturned.
On appeal, appellants claim they have standing based on four arguments: (1) “their expressive interests in reaching their target audience were being restricted by the trespass ordinance”; (2) “there was a credible threat of enforcement of the ordinance against appellant Carter, providing him with standing”; (3) “because the ordinance is overbroad on its face, they have standing to challenge it under the ‘overbreadth doctrine’”; and (4) under the “derivative taxpayer” theory. Just a quick note: because the trial court held a preliminary merits hearing, and made factual findings and conclusions of law, the SCOV reviews the trial court decision (not completely de novo) but applies the “clearly erroneous” standard of review for facts and de novo standard for conclusions of law.
Before looking at the appellants’ arguments, let’s talk about standing. “Standing” is the legal right of a person or group to challenge the conduct of another in a judicial setting. Why have a standing requirement? The SCOV opines that is for judicial restraint, but I’d like to propose another reason. The courts don’t like to work in possibilities or hypotheticals—only in situations where certain essential facts are first known. Otherwise, the court system would become clogged with hypothetical fights. If you are a constitutional junkie, like myself, you’ll know a lot of standing issues come from environmental groups trying to get injunctive relief against proposed development projects, and members of the group all live in State X and the project is happening in State Z, and the members’ connection to the project is the sticking point. Further, the “standing” requirement is contained in the United States Constitution, under Article III, and Vermont has adopted the “standing” requirement as well (all the cool kids call it “Article III standing”).
“How do you satisfy the ‘standing’ requirement?” you might ask. You need to show, at a bare minimum, “(1) injury in fact, (2) causation, and (3) redressability.”
With this backdrop, the SCOV turns to the appellants’ first argument. Appellants' argument is that people (who were given a notice of trespass) couldn’t attend a rally they held about opposing the ordinance and Marketplace District is a “traditional public forum” (legal jargon for “the government bears a heavy burden to limit your ability to exercise constitutional rights in this area”—“traditional public forums” are like sidewalks and town squares). While there is a SCOTUS case that touches on this issue, the SCOV differentiates it as the appellants have not “been adversely affected by the trespass ordinance” and those that have been affected should seek the relief instead. Also in this same vein, the SCOV states that third-party standing (standing in the shoes of another, like a proxy) is generally not allowed, and, even if it were to look at third-party standing, appellants “have not shown that those potential attendees of their rallies would likely be unable to assert their own First Amendment rights.”
Onto the appellants' second argument. One of the appellants asserts that there “was a credible threat of enforcement of the trespass ordinance against him,” and, based on a federal court case, he has standing (people in the know call this a “pre-enforcement challenge”). One of the appellants was threatened by an officer (after the appellant observed a bar scuffle and called the police) to have some ticket be written against him (it’s not known whether it was a trespass-ordinance-based ticket or a regular criminal ticket). The trial court found that the appellant was “threatened with a general notice of trespass for the bar and not for the Marketplace District” and no ticket was ever written. The SCOV upholds the trial court’s determination based on the evidence.
The third challenge concerns the “overbreadth doctrine.” The SCOTUS allows standing by a plaintiff when “a statute . . . is so broadly written as to present a realistic danger to ‘recognized First Amendment protections of parties not before the Court.’” Again, looking at federal cases, the SCOV reasons that “the overbreadth doctrine concerns those ‘whose interests a plaintiff suffering Article III injury may represent,’ not whether the plaintiff can bring a facial challenge absent any actual injury,” i.e., no injury to the plaintiff = no “overbreadth doctrine”-based standing.
The final challenge—“derivative taxpayer” theory—also faces the same fate as the other challenges. Under this theory, one must show “either [they] sustained some ‘direct loss’ or that municipal assets have been ‘improperly wasted,’” and “merely invoking one’s status as a taxpayer is not enough to invoke standing under a taxpayer suit.” The SCOV finds that appellants haven’t satisfied either requirement for “derivative taxpayer” theory.
So the SCOV concludes that appellants don’t have standing. But that is not the end of the case. Other people who have been injured could bring a case in the future if they can meet the standing requirement. I suspect this will not be the end of Marketplace District trespass ordinance matter.