STATE OF VERMONT

JUDICIAL BUREAU Burlington Unit City of Burlington, Plaintiff v. Molly M. Jesse, Defendant CIVIL VIOLATION CASE Docket No. 88123

FINDINGS, CONCLUSIONS, AND JUDGMENT

INTRODUCTION This matter came before the Judicial Bureau on January 16, 2014 on the City of Burlingtons 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 pro-life 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 1

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 Defendants car were three magnetic stickers or signs. On the rear tailgate were two ribbons. One bore the phrase pray for our sisters. The other bore the phrase choose life. Each ribbon magnet measured approximately 8 inches in height. On the drivers-side door, there was a magnetic sign that bore an image of a man with a red heart, followed by a plus 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 words Your baby is forever; love you. The sign was approximately the size of the door. Upon seeing the sign and stickers on Defendants 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 Councils 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 Planned Parenthoods 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 Parenthoods premises or the point to which the 35-foot buffer zone around Planned Parenthood extends. Lastly, there is no dispute about Defendants 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 2

States and Vermont Constitutions; and 2) whether Defendants parking the car within 35 feet of Planned Parenthood with the signs magnetically affixed to the vehicle constitutes knowingly 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.1 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, 41415 (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, 39394 (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 Vermonts 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 Vermonts 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.

explain her position that, even if the Ordinance is constitutional under the First Amendment, it is unconstitutional under Article 13 or any other provision of the Vermont Constitution. Seeing no obvious distinction, this Court also finds Ordinance 21-113 to be constitutional under Article 13.

APPLICATION OF ORDINANCE TO FACTS Having found that the Ordinance is constitutional, the Court must now decide whether Defendants conduct violates the Ordinance. Ordinance 21-113(2) provides that no person or persons shall knowingly congregate, patrol, picket or demonstrate in the Buffer Zone. (emphasis added). The Municipality does not assert that Defendants presence across the street from Planned Parenthood violates the Ordinance. Thus, the question is whether Defendants placement of the vehicle with the magnetic signs affixed to it constitutes a knowing demonstration. For the following reasons, the Court concludes that Defendants actions were knowing . Defendant did not park the car in front of Planned Parenthood while consciously thinking about the magnetic stickers being affixed to the car. However, her decision to put and keep the sign and ribbons on the car was clearly intentional and clearly designed to convey a message. Additionally, there is no evidence that she believed or had any reason to believe that the sign and ribbons were not on her car on the day in question. For the reasons that follow, the Court concludes that Defendants placing the sign and ribbons within the buffer zone constitutes a demonstration. The Ordinance does not define the term demonstrate. The Random House Websters College Dictionary defines it to mean to make, give or take part in a demonstration. Random House Websters College Dictionary 360 (1992). Demonstration is defined as a public exhibition of the attitude of a group toward a controversial issue or other matter, made by picketing, parading, etc. Id. It is necessary, therefore, to examine both the content of the signs at issue and the context and manner in which they were displayed. The intent of the Ordinance is to allow unimpeded, unobstructed access to RHCFs. Ordinance Sec. 21-111. Clearly, the City Council did not intend for the restriction to be limited to physical impediments and obstructions. Otherwise, the prohibitions would be limited to those contained in Section 21-113(1).2 At the same time, however, the Ordinance and other ordinances and injunctions

Section 21-113(1)provides that no person shall knowingly obstruct, detain, hinder, impede, or block another persons entry to or exit from a Reproductive Health Care Facility.

like it around the country do not purport to prevent individuals who are within the buffer zone from hearing or seeing demonstrators or demonstrations. This is clear from the relatively short expanses of such buffer zones. See, e.g., McCullen v.Coakley, 708 F.3d 1 (1st Cir. 2013) (Massachusetts 35-foot buffer zone); Madsen v. Womens Health Center, Inc., 512 U.S. 753 (1994) (injunction establishing a 36-foot buffer zone in Florida); Hill v. Colorado, 530 U.S. 703 (2000) (Colorados 8-foot buffer zone); Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357 (1997) (New Yorks 15-foot buffer zone); Brown v. City of Pittsburgh, 586 F3d 263 (3d Cir. 2009) (Pittsburghs 15-foot buffer zone). In fact, the short expanse is critical as it allows for alternative channels of communication by those exercising their First Amendment and Article 13 rights. See Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir. 2011) (To withstand constitutional scrutiny, government restrictions must be (1) content neutral, in that they target some quality other than substantive expression; (2) narrowly tailored to serve a significant governmental interest; and (3) permit alternative channels for expression.) (quoting Deegan v. City of Ithaca, 444 F.3d 135, 142 (2d Cir. 2006)). Signs held outside of the buffer zone, regardless of size or design, do not violate the Ordinance although they may well be visible to individuals within the buffer zone. By contrast, the sign affixed to the drivers door of Defendants car, although clearly within the buffer zone, w ould have been visible to individuals within the buffer zone only if they were actually in the street. Nobody on the west sidewalk, especially directly in front of Planned Parenthood, could possibly have seen the sign as it was affixed to the side of the car facing the street. On the other hand, it would be visible to patients walking across St. Paul Street to enter Planned Parenthood. The Ordinance seeks, in part, to ensure that patients have unimpeded access to reproductive health care services. Ordinance Sec. 21-111. The Ordinance also seeks to reduce disputes and confrontations requiring law enforcement services. Id. While the sign on the drivers door is less likely to impede access to Planned Parenthood or cause a dispute or confrontation than some permissive demonstrations occurring outside of but near the buffer zone, placement of that sign is still a demonstration within the buffer zone. Magnetic ribbons similar to those on Defendants car come in all different types today and are seen on many vehicles. Some support breast cancer victims or autistic individuals. Some ask that we bring our troops home soon. Still others support school sports teams. Regardless of the message, these symbols are displayed to convey what one believes to be a compelling cause or idea. 5

It is unclear to the Court whether the ribbon bearing the phrase pray for our sisters conveys an opinion that is necessarily related to the reproductive health care facility or any service provided by that facility. Thus, standing alone, the Court might not conclude that this expression conveys an attitude toward a controversial issue. The ribbon bearing the phrase choose life clearly does state an opinion in opposition to at least the abortion services provided by Planned Parenthood. As indicated above, one is demonstrating if engaging in a public exhibition of the attitude of a group toward a controversial issue. There can be no question about the controversy surrounding the right to an abortion. That controversy is what has spurred the enactment of laws and issuance of injunctions creating the buffer zones across the country. A ribbon bearing the phrase choose life is a public exhibition of the stance in opposition to abortion. Thus, it is a demonstration and Defendant was indeed demonstrating by parking her car within the buffer zone while the choose life magnet was af fixed to it. It is easy to become mired in the analysis of each individual fact in this case. However, looking at the totality of the circumstances, Defendants placement of the three magnets in this context does constitute a demonstration. Because it occurred within the 35-foot buffer zone around Planned Parenthood, an RHCF, that demonstration violated City Ordinance 21-113(2).

JUDGMENT Accordingly, judgment is entered for the City of Burlington. The penalty is set at $102.50, which is comprised of the $52.50 filing fee and a fine of $50, and is due by March 18, 2014. Defendant shall have 30 days to file an appeal.

Electronically signed on February 13, 2014 at 05:58 PM pursuant to V.R.E.F. 7(d).

_________________________________________ Howard A. Kalfus Hearing Officer