Last-Ditch Occupy Suit Seeks Proprietors’ Demise

As the final showdown nears for Occupy New Haven, protesters’ attorneys went to court Tuesday to try to save the encampment on the Green — and took aim at the little-known quasi-public, quasi-private quintet that actually owns the park.

Civil rights attorney Norm Pattis filed motions in U.S. District Court on Church Street seeking a restraining order and injunction preventing the city from enforcing an order to remove the tents and 30 or so protesters stationed there since Oct. 15 as part of the nationwide anti-corporate ​“Occupy Wall Street” movement.

Pattis also filed a complaint asking the court to remove title to the Green from the group known as the Proprietors of the Green. The complaint also seeks to dissolve the group. The emergency complaint is scheduled to be heard Wednesday morning at 10 a.m. before U.S. District Court Judge Janet Hall in Bridgeport. It’s filed on behalf of eight occupiers: Erin Mitchell, Danielle DiGirolamo, Josh Smith, Donald Montano, Alexander Suarez, Ty Hailey, Ray Neal, and Josh Heltke.

Click here to read the suit.

The official name of the group targeted by Pattis’s complaint is The Committee of the Proprietors of Common and Undivided Lands at New Haven.

Its members, not the city, own the 16-acre New Haven Green, including the upper half, where dozens of anti-corporate protesters and homeless people have been camping out. The proprietors joined the city in welcoming the occupation last fall and through the winter. They joined the city in deciding to issue a notice to the occupiers Monday telling the remaining occupiers that they have until noon Wednesday to fold up their tents and leave—an order at least some occupiers are vowing to defy.

The public doesn’t elect the Proprietors. They elect themselves. For life.

Just as New Haven’s occupation has differed from almost all others — its hardy souls have lasted in their encampment through the winter, and city officials have worked with them to keep peace rather than oppose them, until now — the group at the controls is a breed apart, as well. Not quite public. Not quite private. And, when people get to know them, far from the villainous caricatures of the ​“1 percent” elites targeted by the Occupy movement.

Its members have officially owned the Green and chosen their successors since the early 17th century. The group began with the original settlers of New Haven Colony. The state legislature affirmed their descendants’ legal right to control the Green in 1683, then again in 1723. (Read more about that history here.) And to some extent control has stayed in the family: One of today’s five proprietors, Anne Tyler Calabresi (pictured), descends from the original proprietor Theophilus Eaton, who founded the colony along with John Davenport. (Click here to read a story about her favorite, rebellious ancestor from that period: Theophilus’s wife Anne.)

Pattis’ complaint charges that the group’s very existence and its ownership of the Green violate the state constitution.

“The New Haven Green is owned by descendants of the founders of the City of New Haven. The plaintiffs contend that the Green is a public trust, analogous to riparian lands, and therefore the public enjoys equitable title to the Green. It has for time immemorial been used as a location for public meetings of all kinds,” the complaint reads, in part.

“The seemingly hereditary, private and cloistered manner of selecting members of the Proprietors and giving them lifetime appointments for the purpose of governing a public trust violates Article First, Section 18 of the Connecticut Constitution, which states: ​‘No hereditary emoluments, privileges or honors, shall ever be granted, or conferred in this state.’”

The city’s move to remove the camp is an ​“overbroad response” to the occupation for which there is ​“no justification,” Pattis said Tuesday. It’s simply a part of the city’s ​“annual Potemkin-like effort to make the city look nice for visiting Yalies.”

Close Coordination

City corporation counsel Victor Bolden released the following response to the lawsuit Tuesday afternoon: ​“Unfortunately, rather than recognize that the New Haven Green is public space for all, several members of the Occupy New Haven protest have filed a lawsuit, essentially seeking to declare it private property for use as they see fit. The consequences of allowing them to succeed would be to deny every one in the New Haven community and elsewhere the enjoyment of publicly available land now and for the foreseeable future. As a result, the City of New Haven opposes these efforts. Hopefully, the courts will agree.”

The Proprietors’ chairman, Drew Days, gave the Independent an extensive rebuttal to Pattis’s legal claim (printed in full later in this story). He based the argument in part on actions the state legislature took in 1929 to repeal obsolete statutes but which kept the Proprietors’ ownership intact; in part on a claim that ​“the Green is not and never has been a public square of the City, as are the other parks.”

Both city officials and the head Proprietor said this week that they’ve been working closely on the occupation controversy and are in agreement about how to proceed.

Besides Calabresi, the Proprietors include Chairman Days, a Yale law professor emeritus and former Clinton Administration Solicitor General, and a lifelong civil-rights activist and the first African-American member of the group; U.S. District Court Judge Janet Bond Arterton, who made a career in private practice defending workers’ rights; Albertus Magnus President Julia McNamara; and retired banker Robert Dannies.

You rarely hear about the group. It doesn’t issue press releases or give public talks or invite the public to observe its work. Its unpaid members do feel they are fulfilling a civic duty to preserve an important public space in the public interest.

They meet quarterly at the New Haven Museum (formerly the New Haven Colony Historical Society) to decide major issues involving the Green. Otherwise they leave it to the city to police the Green and make day-to-day decisions about permits and uses.

Occupy New Haven changed that. In recent weeks Drew Days, the Proprietors’ chairman, has been in regular phone contact with city Chief Administrative Officer Rob Smuts about how to deal with the occupy protesters. Days even came in person to City Hall last month to debate the issue, respectfully and openly, with occupy protesters. (Click here to read all about that.)

It’s hard to tell just whom to credit or blame for official decisions — or whom to sue, as the occupiers’ attorney put it — about the Green’s use. Both Days and city officials say they’ve been operating on the same page: Support for the occupiers’ rights to press their cause in public; and a conviction that the Green is not a camping ground for one group to dominate indefinitely.

“The Proprietors are conscious of the Green as a public marketplace for the expression of ideas,” Mayor John DeStefano said Monday. ​“The Proprietors are just like everyone else — like city government, like most residents — [in concluding that] it’s time. Everyone’s pretty much arrived there. The Green and the other parks weren’t meant to be permanent residences.” DeStefano said he believes the Proprietors ​“play a unique and appropriate stewardship role. We clean it. We have a lot to say what happens there.”

“The Green is one of the 10 most attractive public spaces in America. There have been awards. We’ve gotten plaques about that,” Days said in an interview Monday. ​“There is something very special about the Green.”

Irving Pinsky, a lawyer for Occupy (who asked Days and Smuts whom he’s supposed to sue, and didn’t get a straight answer), disagreed about the appropriateness of a largely secret group owning the city’s central public space. He called the arrangement ​“one more example of the colonists running America.” He also decried the group’s historic ties to Yale; he and others at the occupation claim the city has moved to evict the encampment because Yale graduation and the Festival of Arts & Ideas is approaching. (The city responds that in warmer weather it wants to make sure other people have equal access to the upper Green.)

And yet, Pinsky has only praise for the Proprietors themselves.

“This bunch of Proprietors are really good. It’s a real tragedy that my friends at Occupy have to go against people who are lifetime workers for the betterment of America,” he said. ​“Drew Days — who’s better than him? His whole life has been in civil rights and helping people.”

Been There

Days, who’s 70 years old, said he sympathizes with the protestors’ plight. He said he knows what it’s like to try ​“to convince the public that you have genuine convictions and you want those convictions to be known, and you’d like to see those changes in society.” He said he has experienced that feeling for decades since he went as a law student to Albany, Georgia, in the mid-1960s to help civil rights attorney C.B. King battle segregation. He found himself alongside protesters battling police or committing disobedience, often as their attorney, sometimes as a participant.

“There was a problem with a luncheonette that refused to serve mixed-race groups,” Days recalled. ​“We went down to look into that issue. Some of us ended up marching with the protesters. They brought forth the ​“Blue Angels,” the Georgia State police. [Without them] we would have been completely wiped out.

“I’ve been in a number of demonstrations like that either as a lawyer or a protester.”

He has also played the role Pinsky might play this week — representing someone arrested in a public park by police, in this case police sent by the city and the Proprietors. In the late 1970s Days represented a Vietnam vet whom police beat up and charged with resisting arrest after he stormed a concert on horseback in Central Park, Days said.

But he said he believes the Supreme Court has made clear that sleeping in tents in parks without a permit is not a protected exercise of free speech; he cites the 1982 case Clark v. Community for Creative Nonviolence. He said he believes that whatever the merits of the occupiers’ arguments against the country’s economic and political order, that doesn’t justify ​“depriving other people of a free and happy use of public spaces.”

The occupiers argue that they’re not depriving people of that use. Chances are that debate will continue after an expected uprooting of the encampment Wednesday.

Might that debate find its way into Days’ law school classroom?

“I haven’t taught First Amendment issues in a while,” Days said. ​“But it’s quite possible.”

Meanwhile, while it might not be clear on legal grounds whom Pinsky should sue, if he indeed files a suit, a practical consideration offers an answer for any action seeking monetary damages.

According to the Proprietors’ most recent Form 990 tax form, the group doesn’t have much in the way of net assets. It reported having $45,625, to be exact. It reported raising $203,725 in total charitable contributions over five years. Click here to read the form. The group keeps its money in a fund at the Community Foundation for Greater New Haven.

In the mid-1980s the group initiated a campaign to fund a dramatic refurbishing of the Green. It keeps some money on hand to help with special projects like the recent repair and stabilization of the 1907 Bennett Memorial Fountain.

The group didn’t become a not-for-profit until 2002. It never thought it needed to. It didn’t think it needed money because, according to Days, it always had free legal help; longtime Proprietor C. Newton Schenck was a partner in the white-shoe New Haven firm of Wiggin & Dana.

Then Schenck passed away, and the group prepared an application to the Internal Revenue Service for not-for-profit status.

The IRS responded, in effect, ​“I’m sorry. We don’t understand,” Days recalled. The agency asked when the organization was started and by whom. ​“We said 1649. And Charles The First.

“They were not amused. Mostly bemused, I think.”

So the Proprietors tried again. ​“We wrote back and said, ​‘We just take care of a park. We’re pretty innocuous.”

Then the IRS said yes.

* * * *

Following is Drew Days’ response to legal claims made in Tuesday’s motion by attorney Pattis:

The question that you raised [whether the Proprietors truly own the Green and whether their existence violates the state constitution] is complicated and requires a complicated answer.

The following historical account should provide you with some understanding of the role of the Committee of the Proprietors. It is drawn quite liberally from a talk given by a former Chairman of the Committee, Newton Schenck, in 1990.

In 1638, the tract of land settled by John Davenport, Theophilus Eaton and their followers (New Haven) was organized as a plantation and those who raised funds and materials for settlement were called ​“free planters” and retained an identity as ​“proprietors,” separate from the subsequent town organization. These “ free planters” held title to the soil of the colony and had the right and responsibility to divide and convey or use all their undivided and common lands, which they did until there was little left but the Green.

By 1723, an Act of the General Assembly confirmed the previous land grants made by the proprietors and recognized that the descendants of the original proprietors might claim all remaining common and undivided land ​“to be the proper Estate.” Furthermore, they were recognized to have ​“full power….to regulate, improve, manage and divide such Common Land in such Manner and Proportion as they shall see good.” However, it also provided that the power to divide and set out lands did not apply ​“to any lands sequestered for Town Commons…” In the 19th Century, the descendants of the old proprietors were a scattered and unrecognizable group. Therefore, in December, 1805, such proprietors as could be gathered in meeting voted to appoint a self-perpetuating committee of five members, with power to alienate the remaining property which still included more than the Green.

On the petition of the aforesaid Committee, the Connecticut General Assembly, in its 1810 October Session, passed a resolution that ​“the powers of the Committee given by them by said vote be, and the same are hereby confirmed and established, and that any alienation or conveyance which they have already made or which they may hereafter make in performances of those powers shall be good and effectual in the law, to convey the estate of the said proprietors therein to the grantee or grantees thereof.”

In 1868, the City Charter granted that year vested the Court of Common Council with the entire management and control of all public squares of the City and that provision continues in subsequent charters. In 1929, the Assembly passed an act repealing as obsolete certain statutes that had dealt with certain aspects, such as public notice of meetings, of action taken by town proprietors generally with respect to Common Lands. Nevertheless, the Committee of the Proprietors in New Haven has exercised its jurisdiction on the grounds that it continues to have title and control — - presumably because the Green is not and never has been a public square of the City, as are the other parks, and because the statute repealed by the Assembly in 1929 did not repeal its resolution of 1810. In short, the Committee views itself as holding the Green in trust for the people of New Haven. In so doing, it relies upon the resources of the Parks Department of the City of New Haven to issue permits for specified uses and events under rules prescribed by the Committee from time to time. Its members serve for life and is a self-perpetuating body. In other words, once a member dies or resigns, the successor is chosen by the remaining proprietors.

Thomas MacMillan contributed reporting to this story.