Thomas MacMillan Photos
Occupiers took the steps of federal court.
Norm Pattis traveled back centuries in Colonial history, took a theoretical turn as city parks director, and asked if he could force people driving through Bethany to hold chopsticks in their hand and sing the National Anthem.
He did all that in federal court. To try to save New England’s last standing “Occupy” encampment.
Pattis (pictured at left), the attorney for the Occupy New Haven encampment that the city is trying to move off the upper Green, brought all that history, theater and role-playing to Judge Mark Kravitz’s U.S. District Court room on Church Street Wednesday afternoon.
The hearing lasted three hours. In the end Judge Kravitz extended the restraining order against the city until April 9 and said he plans to issue a decision before that time.
Pattis is asking Kravitz to allow the anti-corporate protesters to keep their tents on the Green despite a city order to vacate. The protesters have been there since October; it’s the last standing New England outpost of the Occupy Wall Street movement that arose last fall.
Pattis also wants Kravitz to send a second request to the state Supreme Court: to declare that the private self-perpetuating body that technically owns the Green — The Committee of the Proprietors of Common and Undivided Lands at New Haven, a.k.a. the “Proprietors of the Green” — shouldn’t be allowed to, under the state constitution. (Read about that debate, including an extensive defense of the arrangement, here.)
Following its establishment last October, the Occupy camp had coexisted cooperatively with the city. But for weeks now, city officials have been trying to remove the camp from the Green. On March 14, city efforts ran into a temporary two-week restraining order when Pattis convinced a federal judge to enjoin the city from moving against the camp.
At Wednesday’s hearing, Kravitz allowed Pattis to call to the stand the head proprietor, Yale Law School Professor and former Clinton Administration U.S. Solicitor General Drew Days (pictured).
The exchanges that followed were part Woody Allen movie (think 1971’s Bananas, and a general’s order that people must wear underwear on the outside of their clothes), part wild law school debate.
History Comes Alive
Pattis pursued a line of inquiry designed to draw out who exactly has the ultimate authority over the Green, and to highlight any confusion or disagreement between the city and the Proprietors on that subject.
The city government’s parks department runs the Green on a daily basis on behalf of the Proprietors. It approves permits for the Green along with city parks. (The city never made Occupy New Haven take out permits for its encampment.)
Days, wearing a charcoal suit and purple tie, took the stand shortly after 1 p.m. Some contentious examination ensued, punctuated by objections from the Proprietor’s attorney, Alfred Pavlis.
Pattis and Days went through the history of the Proprietors, which stretches back to the 17th Century. “I can’t call any other witnesses; they’ve been dead for centuries,” Pattis quipped.
“Who has the right to determine when the Green can be used?” Pattis asked.
“The city has its own regulations,” Days said. The Proprietors “provide guidance.”
What gives a private group the right to guide anybody about public use? Pattis asked.
The guidance “reflects the overall relationship between the Proprietors and the city,” Days said. It’s been that way for centuries, he said.
Since even before the parks department existed, when New Haven was a theocracy and you couldn’t own land unless you were a church member, Pattis said.
“This is ancient history,” interrupted Judge Kravitz.
Pattis stopped by the Green Wednesday morning.
“It’s alive today,” Pattis responded. The Green is held in a ownership arrangement that’s unique in the country, he said. “I’ve never seen anything like it in the history of the republic.”
The Proprietors’ guidance to the city is codified in a document, adopted by the proprietors in 1974 and amended in 1984, entitled “Regulations Governing the Use of the Green.” Does that document, or the Proprietors “guidance” have “the force of law”? Pattis asked Days.
“No,” Days said.
Yet, Pattis pointed out, article L of the regulations states that people can appeal to the Proprietors if the city denies them a permit to use the Green.
Days said no one has ever made such an appeal. He said the Proprietors confer on matters regarding the Green. “But it’s not a matter of high drama.”
“It is now,” Pattis said.
He showed Days a document with Title III, Chapter 19 of the city ordinances, which covers the regulating of city parks by the parks department.
The document does not mention Green, Pattis noted. Does that mean the Green is not a “public” park?
“No, it is not” a public park, Days responded.
Pattis: “This set of regulations pertains to public parks, does it not?”
Days: “It relates to parks listed here.”
Pattis: “And the Green is not listed there.”
Days: “That’s correct.”
Days conceded that Title III, Chapter 19 does not therefore apply to the Green. “So how can you delegate appellate rights to overrule city decisions?” Pattis asked.
He was making a larger argument: That a private body shouldn’t be making public rules.
He later channeled Woody Allen to underscore the point.
He pointed to his two fellow attorneys. Suppose the three of us declared ourselves the “Proprietors of the Common and Undivided Lands of Bethany”? Pattis asked. (He lives in that town.) Suppose “we passed a law that you have to hold chopsticks in your left hand” when you drive through town and that you have to sing the National Anthem.
“Would you feel obliged to do so?” Pattis asked.
No, Days responded, he would not feel obliged.
Endangered Trees
Occupier Josh Heltke picks out punk rock riffs Wednesday.
Days also answered questions from the Proprietors’ attorney, Alfred Pavlis, who asked Days if he has concerns about the condition of the Green because of the encampment.
Yes, Days responded.
The upper Green, where the 30-some tents are set up, is the more sensitive portion of the 16-acre park, he said. He said he worries about “long periods of pressure” on the tree roots, and “long-term ill effects” and damage to the Green.
Parks Director Pattis
Following Days, city parks chief Bob Levine took the stand at 2 p.m.
Under questioning from Pattis, Levine said the Green is the only property his department oversees that does not belong to the city. He said he looks to the 1973 document “Guidelines” drafted by the Proprietors for guidance on oversight of the Green. He said he does so because the regulations were “passed down by my predecessors.”
“When were they adopted” by the city? Judge Kravitz asked.
“I’m not aware of whether or not they were adopted by the city,” Levine said.
Then, contradicting Days testimony about the Green, Levine said, “We regard it as a public park.”
Pattis pointed out that although the city regulations covering parks refer specifically to Lighthouse Point and Edgerton Parks, along with athletic fields, golf courses, tennis courts, and swimming pools, they make no mention of the Green. So then how could these regulations apply to the Green?
“We take authority from the Regulations Governing the Use of the Green,” Levine said.
Pattis asked Levine to role-play with him. He told Levine: Pretend you just won the lottery and don’t have to work anymore and you’re orienting me to be the next parks director and I want to know how to know what to do with the Green.
“I’d have you start with the Regulations Governing the Use of the Green,” Levine said.
And what if I say, “What does a bunch of people claiming to be descendants of colonists” have to do with running the Green, Pattis said.
The authority to run the Green is given to us through the Regulations Governing the Use of the Green, Levine said.
“You mean to tell me that a private entity … tells us what rules to apply to the Green?” Pattis said. “I don’t want to get sued by some wiseacre lawyer in town.” Can you show me where in the city ordinances it says the city has adopted the Regulations Governing the Use of the Green?
“No,” Levine said.
Pattis said he wouldn’t then be taking the job of parks director.
The Medium Is The Message
During a short recess, Occupy member and named plaintiff Ty Hailey said he was having a lot of fun. But it’s ultimately meaningless as far as he’s concerned, he said. “This a protest. This goes beyond permits.”
Back in the courtroom, occupier Danielle DiGirolamo (pictured above), another plaintiff, took the stand wearing high heels and a black cardigan over a cream-colored blouse and a short black skirt. She said Occupy is “taking back the land that belongs to all of us.” The camps themselves send a message that’s “way more effective that any pamphlet we could hand out.”
The tents refer to the tent cities of the Great Depression and “represent the struggles we are going through and the fact that we have nowhere else to go,” she said.
Occupier and plaintiff Ray Neal (pictured) took the standing wearing a red plaid shirt tucked into green work pants with a blue bandanna coming out of the back pocket.
He said the tents “are an example of where more and more folks in this world are ending up.”
Lawyers for the city and Proprietors had no questions for DiGirolamo or Neal.
“An Insult To The First Amendment”
The hearing closed with arguments from each of the five lawyers: three for the occupiers, and one each for the city and Proprietors.
Pattis summed up his case by invoking Max Weber who wrote about the “legitimacy” that allows a cop with a gun to force you to surrender your wallet where a bandit with a gun is forbidden.
Where is the legitimacy on the Green? he asked. The Proprietors have written regulations that the city enforces but has never formally adopted. That situation raises “substantial questions” of legitimacy, Pattis said.
Pattis’ colleague Kevin Smith argued that the city has not applied its supposed regulations without consideration of the “content” they’re applied to. That is, the city is specifically restricting Occupy because of the content of its message. “It’s like saying everybody else can come here except you.”
“This is not just an eviction of the occupiers, this is an eviction of the First Amendment,” Smith said.
If the city had objected to the message, “we would have been in there quickly, harshly as other cities have done,” said John Horvack, a private attorney representing the city.
As for questions of ownership, “It doesn’t matter who owns the Green” for the case at hand, he said. The city’s actions do not prevent Occupy from protesting elsewhere, he said. “They are going to continue forward with their message as they should.”
Sleeping on the green is not speech, he said. “It’s an insult to the First Amendment to say that it is.”
Killing grass and endangering trees convey “no message whatsoever.”
Horvack said the city has “governmental interests” to protect, including preventing crime (“These types of encampments are magnets for crime”), preventing fires, allowing fair access for all, and preventing occupations from taking over the Green entirely.
Judge Kravitz interrupted with a question: Can people appeal to the proprietors if the city denies them a permit to use the Green?
“I don’t know the answer to that,” Horvack said. “That’s a good question.”
Pattis got the final word, and again questioned why a private self-perpetuating body should be allowed to tell people what to do in what is essentially a public space. “This is not a theocracy. It’s not a plantation. It’s a republic.”
