Cappello v. City of Newport
| Docket Number | 23-CV-00137 |
| Decision Date | 08 September 2023 |
| Citation | 2023 Vt Super 090801 |
| Parties | Andrew Cappello v. City of Newport et al |
| Court | Superior Court of Vermont |
Title Defendants Motion to Dismiss (Motion 1)
Filer Kevin Kite
The motion is GRANTED IN PART and DENIED IN PART.
Defendants City of Newport, Travis Bingham, Thomas Bernier, and Paul Monette, move to dismiss Plaintiff Andrew Cappello's complaint for failure to state a claim upon which relief can be granted. The Court grants this motion in part and denies it in part as explained below.
In a motion to dismiss, the Court is limited to the allegations and facts as established in Plaintiff s complaint, which the Court must assume are true and from which the Court must make all reasonable inferences. Montague v. Hundred Mere Homestead, MLC, 2019 VT 16, ¶ 10.
In this case, Plaintiff s Complaint establishes the following. Plaintiff Andrew Cappello is a resident of East Charleston, Vermont who worked for the City of Newport, Vermont between 2009 and 2021 in its Parks and Recreation Departments. This employment was marked with personal and professional tension between himself and the then-City Manager, Laura Dolgin.[1] In June 2021, Plaintiff resigned his employment with the City. On August 5, 2021, Plaintiff was visiting friends at the Prouty Beach Campground. The Campground, which sits on the shores of Lake Memphremagog is owned and operated by the City of Newport.[2]
During Plaintiff's visit to Prouty Beach, he was approached by Defendant Thomas Bernier, the City of Newport's Director of Public Works who accused Plaintiff of harassing public works employees and demanded that Plaintiff leave Prouty Beach. Plaintiff did not leave. Soon thereafter, he was served with a notice against trespass under 13 V.S.A. § 3705(a)(1) that ordered him not to enter upon property that is lawfully possessed by the City of Newport. Specifically, the notice required Plaintiff not to enter Prouty Beach and Gardner Park, another city-owned park located approximately one mile from Prouty Beach. The Officer serving the notice on behalf of the City confirmed that the notice covered Prouty Beach and Gardner Park as well as all other property owned by the City of Newport.
The Notice, did not contain information as to why the City had issued it to Plaintiff, and it did not include any instructions or information on how to contest the notice. The Order was effective immediately, and Plaintiff left Prouty Beach soon thereafter. Plaintiff, after leaving Prouty Beach made a phone call to Defendant Travis Bingham, the City of Newport's Chief of Police. Chief Bingham told Plaintiff that Defendant Bernier had requested the notice, and Chief Bernier had complied with the request. At that time, Plaintiff did not contest the notice against trespass.
During the following spring of 2022, Plaintiff began volunteering for his children's T-ball team, but he could not continue because the team practiced at Gardner Park. At the same time, Plaintiff also started a position with the NorthWoods Stewardship Center, which required him to access Prouty Beach. In March of 2022, Plaintiff contacted the City Manager and Chief of Police asking for the Notice to be lifted. He did not receive a response from either, except for an email from the Chief clarifying that the notice against trespass was good for one year. Plaintiff next asked Defendant Paul Monette, then the Mayor of Newport, and the rest of the City Council to take up the notice and to petition requesting the notice to be lifted. Mayor Monette stated that he would not take up this issue at either the next City Council meeting or any meeting thereafter.
The City did not issue any further Notices, it never took legal action to enforce the notice or to arrest Plaintiff, and it is undisputed that the August 2021 notice expired the following year in August of 2022 and approximately six months before the present complaint was filed.
Plaintiff claims that during the 2021-22 period when the notice against trespass was in effect that he was unable to watch his children at Gardner Park and visit friends staying on Prouty Beach. Plaintiff continues to have fears when he visits parks in the City of Newport that if he is seen by either the Director of Public Works or the City Manager that he will be cited again. To date, Plaintiff has never been told the reason that he was issued a notice against trespass, and the Defendants have not provided any public statement or information to explain why the City issued this notice to Plaintiff or the process followed to issue this notice.
Based on these facts, Plaintiff has filed the present action containing six different counts against the City of Newport, Defendant Bernier, and Defendant Bingham. These claims include five counts under 42 U.S.C. § 1983 and the U.S. and Vermont Constitutions for violations of the following rights: (1) Freedom to Enter a Traditional Public Fora; (2) Freedom of Speech and Association; (3) Right to Due Process to Challenge the Trespass Notice; (4) Right to Access Public Parks and Areas; and (5) Right be Free from Discrimination. Plaintiff has also filed a sixth count under Article 7 of the Vermont Constitution for deprivation of common benefits. Plaintiff seeks a declaratory judgment from these claims stating that the City has violated his rights under the First and Fourteen Amendments of the U.S. Constitution and Article 4, 7, and 13 of the Vermont Constitution. He also seeks an injunction against future trespass orders without constitutional sufficient notice and opportunity to context. Finally, Plaintiff seeks an award of damages and attorney's fees.
Defendants move to dismiss the present complaint on the basis that they claim Plaintiff has failed to state a claim upon which relief can be granted. V.R.C.P. 12(b)(6). To determine whether a complaint survives a motion to dismiss, the court assumes the factual allegations in the complaint are true. Colby v. Umbrella Inc., 2008 VT 20, ¶ 5. The court will only grant the motion if there are no facts or circumstances that would grant plaintiff relief. Id. This is because the purpose of a motion to dismiss for failure to state a claim is "to test the law of the claim, not the facts which support it." Brigham v. State of Vermont, 2005 VT 105, ¶ 11 (quoting Powers v. Office of Child Support, 173 Vt. 390, 395 (2002)). Courts rarely grant motions to dismiss for failure to state a claim. Colby, 2008 VT 20, at ¶ 5; see also Kaplan v. Morgan Stanley &Co., Inc., 2009 VT 78, ¶ 7.
Courts generally disfavor these motions. Bock v. Gold, 2008 VT 81, ¶ 4 (). For these reasons, a party seeking dismissal has a high burden to show that they are entitled to such an initial ruling. Bock, 2008 VT 81 at ¶ 4.
The First Amendment of the U.S. Constitution and Article 13 of the Vermont Constitution guarantee a person's rights to freedom of speech, among other rights. As a preliminary matter, the rights granted under Article 13 of the Vermont Constitution have long been held to be co-extensive with those rights under the First Amendment of the U.S. Constitution. State v. Masic, 2021 VT 56, ¶ 7 ("We have so far declined to extend greater free-speech protection under Article 13 than under the First Amendment and thus engage in a First Amendment analysis, Article 13 as coextensive with its federal analogue."); see also State v. Read, 165 Vt. 141, 153-54 (1996). The Court does not find any reason in the present facts or pleadings to alter this analysis. Therefore, for purposes of this decision, the Court will treat the federal and state rights under the First Amendment and Article 13 as co-extensive.
Before the Court can fully examine the question of a public forum raised in Plaintiff's first count and challenged by the Defendants, there is a threshold question of whether this dispute involves protected speech or expressive conduct. Virginia v. Black, 538 U.S. 343, 358 (2003); State v. Tracy, 2015 VT 111, ¶ 15. The right to access a public forum is, first and foremost, grounded in First Amendment rights. If there is no protected First Amendment activity, then it does not matter whether the forum is a public, limited-public, or private forum. There is no activity to be protected. Cornelius v. NAACP Legal Defense &Educ. Fund, Inc., 473 U.S. 788, 797 (1985) ("[W]e need go no further" if speech is not protected by the First Amendment).
On the other hand, if there is a protected speech or expressive conduct, then the determination of what type of forum is critical to determine what level of scrutiny the restriction on this speech or expressive conduct should receive. Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45-46 (1983); International Soc. For Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678-80 (1992).
In the present motion, Defendants challenge whether Plaintiff's actions were speech or expressive conduct. Defendants characterize the "speech" at issue here as leisure activities- hanging out with friends at Prouty Beach watching a T-ball game-or commercial activities, such as performing tasks associated with his new job. To the extent that the notice against trespass was directed to Prouty Beach, there is legal support for the proposition that hanging out at a beach, talking with friends, or exploring a park is not, in and of itself, a protected speech or expressive conduct...
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