Written last year by an assistant city attorney, the legal opinion is said to argue that a Church Street Marketplace no-trespass ordinance does not violate rights guaranteed under the U.S. Constitution.
The city council voted 8-5 at its June 10 meeting against releasing the memo. Councilors in the majority said the document should be treated as confidential on the grounds of attorney-client privilege. In this instance, the city council was said to be the client of the city attorney.
But at least three councilors who voted in favor of keeping the memo secret have indicated they will change their votes when the issue comes before the council again this evening. Republican Paul Decelles (Ward 7), Democrat Tom Ayres (Ward 7) and Independent Karen Paul (Ward 6) say they will join the five Progressive-aligned councilors in supporting release of the document.
Such a turnaround would come as an embarrassment to the administration of Mayor Miro Weinberger. While the mayor has repeatedly pledged to conduct city business in a "transparent" manner, the city attorney's office had defended the secrecy of the memo. It appears that at least a few of his allies on the city council are now poised to abandon Weinberger on this issue. And if the council does vote to release the memo, the public will learn whether there are embarrassing aspects of it that led the administration to insist it remain secret.
Pictured above: City Councilor Jane Knodell (P-Ward 2) at a press conference Monday morning.
Paul and Ayres stated their respective shift of positions following a press conference held this morning on the Marketplace by councilors and local attorneys who claim the no-trespass ordinance is unconstitutional. Decelles had previously announced his intention to change his vote of two weeks ago.
Calling the council's approval of the ordinance "a tragedy," private attorney Jared Carter revealed today that 22 individuals have been cited under the no-trespass measure since it took effect at the beginning of May. Some have been banned from the Marketplace for 30 days for having allegedly violated the ordinance on two occasions. Most of those cited have been forbidden by police to return to the Marketplace for a 24-hour period.
"We have very grave concerns over how in practice this is being enforced," said attorney John Franco (pictured). He argued today and in a recent written opinion drafted at the request of Progressive councilors that the ordinance violates the Constitution's due-process guarantees. Franco says individuals are being banished from the Marketplace before they have been found guilty of any offense. He also objects to the ordinance's provision specifying that appeals of banning orders are to be made to a Marketplace-appointed panel, which he describes as "extrajudicial."
None of those cited under the ordinance have yet filed an appeal, Carter said.