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PDF: Vermont Judicial Bureau's ruling in Burlington buffer zone ticket case

PDF: Vermont Judicial Bureau's ruling in Burlington buffer zone ticket case

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Published by Philip Tortora
PDF: Vermont Judicial Bureau's ruling in Burlington buffer zone ticket case
PDF: Vermont Judicial Bureau's ruling in Burlington buffer zone ticket case

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Published by: Philip Tortora on Feb 20, 2014
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JUDICIAL BUREAU CIVIL VIOLATION CASE Burlington Unit Docket No. 88123 City of Burlington, Plaintiff v. Molly M. Jesse, Defendant
INTRODUCTION This matter came before the Judici
al Bureau on January 16, 2014 on the City of Burlington’s
complaint alleging a violation of City Ordinance 21-113(2) (Health Center Buffer Zones). Specifically, it is alleged that, on June 12, 2013, Defendant demonstrated within 35 feet of Planned Parenthood on St. Paul Street in Burlington by parking her vehicle in front of Planned Parenthood when her vehicle had magnetic
 signs on it. At the hearing, the City was represented by Assistant City Attorney Eugene Bergman. Defendant was present and was represented by Attorney Barry Kade. Testimony was taken from Burlington Police Officer Baily Emilo and from Defendant. FINDINGS OF FACT The following findings are made by clear and convincing evidence: The facts in this case are entirely undisputed. On June 12, 2013 at approximately 10:51 in the morning, Officer Emilo of the Burlington Police Department responded to 183 St. Paul Street in Burlington for a report of demonstrating within 35 feet of a reproductive health care facility. The offices of Planned Parenthood are located at 183 St. Paul Street. At the time, Defendant was on the east side of St. Paul Street, across the street from Planned Parenthood. She was praying and was well outside of the 35-foot buffer zone. However, her car was parked in front of Planned Parenthood, approximately 20-25 feet from its front door. There is parking on both sides of St. Paul Street in the vicinity of Planned Parenthood. Additionally, there is a
 2 public lot around the corner. At the time when this incident occurred, the only available handicap parking space was the space in which Defendant parked her vehicle. She is disabled and the walk to the public lot was too difficult for her. Her car was properly placarded for the handicap spot. Attached to Def 
endant’s car were three magnetic stickers or sig
ns. On the rear tailgate were two ribbons. One bore
the phrase “pray for our sisters.” The other
the phrase “choose life.”
Each ribbon magnet measured approximately 8 inches in height. On the driver
-side door, there was a magnetic sign that bore an image of a man with a red heart,
followed by a “
” symbol
, followed by an image of a woman with a red heart,
followed by an “equals” symbol
, followed by an image of a baby. Beneath this were the word
s “Your baby is
forever; love you.” The sign wa
s approximately the size of the door.
Upon seeing the sign and stickers on Defendant’s car parked within the buffer zone, Officer
Emilo issued a civil violation complaint for alleged violation of City Ordinance 21-113(2). Defendant was not consciously thinking that the magnetic signs were affixed to the car when she parked it in front of Planned Parenthood on June 12, 2013. However, she ordinarily keeps the signs on the vehicle to convey a message to people passing by. Defendant knew about the Ordinance as it had been explained to her by law enforcement approximately one month prior this incident and, in fact, Defendant had, at that point, already sued the City of Burlington over the constitutionality of the Ordinance. CONCLUSIONS OF LAW Article IX of the Burlington City Ordinance establishes health center buffer zones. Adopted by
the Burlington City Council in 2012, it begins with explicit findings describing the Council’s desire to
balance First Amendment rights to freedom of speech with the right to access reproductive health care services. Ordinance Sec. 21-111. The next section of the Article defines various terms. Ordinance Sec. 21-112. There is no dispute in this case about the fact that Plann
ed Parenthood’s
Burlington Health Center on St. Paul Street is a reproductive health care facility (RHCF) as defined in Sec. 21-
112(1). There is also no dispute about what constitutes Planned Parenthood’s premises or
the point to which the 35-foot buffer zone around Planned Parenthood extends. Lastly, there is no
dispute about Defendant’s person being outside of the buffer zone or her vehicle being within the
buffer zone. At issue in this case are 1) whether the Ordinance is constitutional under the United
 3 States and Vermont Constitutions; and 2) whether
Defendant’s parking the car within 35 feet of
Planned Parenthood with the signs magnetically affixed to the vehicle constitutes
demonstrating” as such acts are prohibited by Section 21
-113(2) of the Ordinance. First Amendment In early 2013, the United States District Court for the District of Vermont considered the constitutionality of Ordinance 21-113. In Clift v. City of Burlington, 925 F. Supp. 2d 614, 648 (2013), the District Court concluded that, under the First Amendment to the United States Constitution, the Ordinance is constitutional.
 While the decision of a federal district court is not binding on a state court,
this Court is persuaded by Judge Sessions’ analysis and conclusion
and hereby adopts both. See State v. Cate, 165 Vt. 404, 414
15 (1996) (although not bound by the decisions of the federal district court, state courts
give respect and persuasive effect to its well-reasoned decisions on questions involving the United States Constitution
) (citing State v. Austin, 165 Vt. 389, 393
94 (1996)). Thus, this Court finds Ordinance 21-113 to be constitutional under the First Amendment. Article 13 A defendant challenging the constitutionality of a law under the Vermont Constitution where
that law has already been declared constitutional under the United States Constitution “bears the
burden of explaining how or why the Vermont Constitution provides greater protection than the
federal constitution.”
State v. Read, 165 Vt. 141, 153 (1996) (citing State v. Porter, 164 Vt. 515, 518 (1996)). Defendant does not specify which provision of the Vermont Constitution she believes is violated by the Ordinance. However, she cites, as a basis for her position, State v. Albarelli, 2011 VT 24, 189 Vt. 293. In Albarelli
, the Vermont Supreme Court analyzed Vermont’s disorderly conduct statute, 13
V.S.A. § 1026, in light of Chapter 1, Article 13 of the Vermont Constitution as well as the First Amendment to the United States Constitution. Without conducting a separate analysis under each
constitution, the Court held that Vermont’s disorderly conduct statute is constitutional
to the extent that the statute proscribes conduct and not speech. Albarelli, 2011 VT 24, ¶ 9. Defendant fails to
 Defendant in the case at bar is also a named plaintiff in the Clift case.

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