Baird v. City of Burlington

• Decision Date: 08 January 2016
• Docket Number: No. 14–460.,14–460.
• Citation: 2016 VT 6,136 A.3d 223
• Parties: Sandra BAIRD and Jared Carter v. CITY OF BURLINGTON.
• Court: Vermont Supreme Court

136 A.3d 223

2016 VT 6

Sandra BAIRD and Jared Carter

v.CITY OF BURLINGTON.

No. 14–460.

Supreme Court of Vermont.

Jan. 8, 2016.

John L. Franco, Jr., Burlington, for Plaintiffs–Appellants.

Gregg Meyer and Eileen Blackwood, Burlington City Attorney's Office, for Defendant–Appellee.

Present: REIBER, C.J., DOOLEY, SKOGLUND, ROBINSON and EATON, JJ.

REIBER

, C.J.

¶ 1. Appellants Sandra Baird and Jared Carter appeal a final judgment by the Vermont Superior Court, Chittenden Unit, Civil Division, granting appellee City of Burlington's (the City) motion to dismiss for lack of standing and subject matter jurisdiction. We affirm.

¶ 2. This case concerns appellants' standing to challenge the City's recently adopted “Church Street Marketplace District trespass authority” ordinance (trespass ordinance). City of Burlington, Code of Ordinances § 21–49 (2015), http://www.codepublishing.com/VT/Burlington [hereinafter Burlington Ordinances]. The trespass ordinance prohibits four activities within the Church Street Marketplace District (Marketplace District) and further provides for a new means to enforce this prohibition: a notice of trespass.¹ The Marketplace District is a quasi-public entity organized in 1979 pursuant to the Burlington city charter. It includes member businesses that pay for membership through extra tax assessments and/or membership payments and it is overseen by a Marketplace Commission, a private organization consisting of nine members with an executive director.

¶ 3. The Marketplace District exists to maintain and promote Church Street and the area around it as a vibrant commercial hub in downtown Burlington. The Marketplace District's geographic area encompasses Church Street from Pearl Street on the north to Main Street on the south and includes segments of three intersecting streets—Cherry, Bank, and College—where buildings have frontage both on Church Street and on one of the intersecting streets. Church Street is a brick-paved public street that is generally closed to automobile traffic.

¶ 4. Filled with restaurants and shops, the Marketplace District has become a hot spot for social gatherings, street performers, protests, speeches, and marches, many of which are impromptu in nature. Despite having the character of an outdoor pedestrian mall, Church Street is nevertheless a public right-of-way and is accessible to the public twenty-four hours a day. Thus, all state criminal statutes, rules of criminal procedure, and city ordinances apply within the Marketplace District. The Burlington Police Department (BPD) is responsible for policing the Marketplace District and maintains a regular presence in the area.

¶ 5. The trespass ordinance was initially proposed in 2012 and adopted by the City Council on February 11, 2013. It became effective on March 3, 2013. The trial court observed that the City Council adopted the trespass ordinance in part to respond to a perceived increase in the number of “homeless or itinerant persons” in the Church Street marketplace, some of whom exhibit co-occurring mental health and substance abuse issues and engage in the behaviors that the trespass ordinance targets. In adopting the trespass ordinance, the City Council included “findings” that were informed by input from the BPD and the Marketplace Commission about “conditions the [BPD] and [Marketplace Commission] ... identified and confront[ed] in the [Marketplace District] on a regular basis.” Burlington Ordinances § 21–49(a). The “findings” in the ordinance include a statement that “[c]ompliance with behavior laws within the ... Marketplace District will be enhanced by the immediate administrative sanction of removing offenders from the ... Marketplace District in addition to issuing tickets to them.” Burlington Ordinances § 21–49(b)(4) (emphasis added).

¶ 6. The trespass ordinance allows BPD officers 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.” Burlington Ordinances § 21–49(c)(1)–(4). The first two of these underlying violations expressly refer to municipal violations that are modeled on state criminal statutes. Compare Burlington Ordinances §§ 21–46, 21–47 (defining and prohibiting “disorderly conduct” and “unlawful mischief” respectively) with 13 V.S.A. §§ 1026

, 3701 (same). The third violation is substantially the same as another municipal violation. Compare Burlington Ordinances § 21–49(c)(3) with § 21–38 (defining and prohibiting possession of an open alcohol container in public).² The fourth underlying violation involves a state criminal offense. See 18 V.S.A. § 4201(29) (defining “regulated drug”); 18 V.S.A. § 4205 (criminalizing unauthorized possession of drugs listed in 18 V.S.A. § 4201(29) ). The trespass ordinance permits the issuing officer to summarily and immediately exclude the recipient of the ticket from the Marketplace District.

¶ 7. Upon receiving his or her first notice of trespass, the offender will not be permitted within the Marketplace District for the balance of that day. Burlington Ordinances § 21–49(d)(1). For a second offense, that person may be expelled for up to ninety days, and upon a third citation, up to one year. Id. § 21–49(d)(2), (3). Once issued, the notice of trespass extends to the whole of the Marketplace District. Id. § 21–49(d). Any person given a notice of trespass can appeal the decision in writing within thirty days to the Marketplace Commission. Id. § 21–49(d)(4). Persons cited with a notice of trespass may also apply for a waiver to access Church Street for “work, residence, access to government services, [and/or] the exercise of constitutionally protected activities.” Id. § 21–49(d)(4)(b).

¶ 8. Appellants Sandra Baird, a social activist and adjunct college professor, and Jared Carter, an adjunct law professor, are Burlington residents and licensed Vermont attorneys. Both appellants pay real property taxes to the City as well as municipal sales tax on purchases in the City. Appellants also frequent Church Street and have been opposed to the trespass ordinance since its inception. Although appellant Carter has alleged that he was threatened with enforcement of the trespass ordinance on one occasion, neither appellant has in fact received a Marketplace District notice of trespass.

¶ 9. On August 14, 2013, appellant Baird filed a complaint against the City for declaratory and injunctive relief, which appellant Carter later joined, claiming that the trespass ordinance was both unconstitutional and ultra vires. In response, the City filed a motion to dismiss for lack of standing, citing that neither Baird nor Carter had been directly injured by the ordinance. After a one-day hearing, the trial court granted the City's motion to dismiss based on lack of standing and subject matter jurisdiction. The trial court held that the appellants had not suffered any “real adverse injury” and so did not have proper standing to bring this case. Ms. Baird and Mr. Carter appealed this dismissal for lack of standing.

¶ 10. On appeal, appellants make four arguments with regard to standing. First, they argue that their expressive interests in reaching their target audience were being restricted by the trespass ordinance. Next, they argue there was a credible threat of enforcement of the ordinance against appellant Carter, providing him with standing. They further argue that because the ordinance is overbroad on its face, they have standing to challenge it under the “overbreadth doctrine.” Finally, appellants argue for standing under a “derivative taxpayer” theory. We conclude that appellants lack standing, so we do not reach the merits of their arguments that the trespass ordinance is unconstitutional and ultra vires.

¶ 11. Because of the unusual procedure the trial court used to make its findings concerning standing, the standard of review we apply in this case requires a thorough explanation. We generally review de novo a dismissal for lack of standing, “the same [standard of review] as that for lack of subject matter jurisdiction.” Brod v. Agency of Nat. Res., 2007 VT 87, ¶ 2, 182 Vt. 234, 936 A.2d 1286

. Issues of standing are normally resolved at trial, but to avoid an unnecessary trial, courts may require plaintiffs to prove facts essential to support standing at a preliminary hearing. See Doherty v. Rutgers Sch. of Law–Newark, 651 F.2d 893, 898 n. 6 (3d Cir.1981) (“[T]o avoid an unnecessary trial, the district court may conduct a preliminary evidentiary hearing on standing.”); N.A.A.C.P., Boston Chapter v. Harris, 607 F.2d 514, 526 n. 15 (1st Cir.1979) (“To avoid an unnecessary trial, the district court may conduct a preliminary evidentiary hearing on standing or other issues of justiciability.”). In such cases, even though the trial court makes findings of fact in such hearings, appellate courts generally do not change their standard of review. Because standing is a question of law, they apply a de novo standard and view the evidence in the light most favorable to the nonmoving party. In such cases, the appellate court often refers to the trial court's decision as a form of summary judgment.³

¶ 12. The circumstances in the instant case are slightly different, both at the trial court level and at the appellate level. Although the issue of standing was initially raised through a motion to dismiss, this motion was effectively turned into an evidentiary hearing on standing by consent. The trial court held a preliminary “merits hearing” to allow “[p]laintiffs the opportunity to present their evidence so that more context and background could be made a matter of record, and the court ... might have a better understanding of the ordinance and its implementation and enforcement in order to gauge whether Plaintiffs did (or did not) have a real and cognizable interest at stake in this case.” The court not only...