Public Service Board Sued In Civil Rights Lawsuit Over Closed-Door Pipeline Hearing

Jul 25, 2016

A Huntington woman filed a federal civil rights lawsuit against the Vermont Public Service Board Friday in an effort to force the board to allow the public into an upcoming hearing related to the Vermont Gas pipeline to Addison County.

The Public Service Board ordered an August 4 hearing closed last week, citing disruptions at previous hearings that they say made the proceedings impossible to carry out. The board's order closing the hearing suggested that if the public were allowed to attend, that could infringe on the due process rights of the people involved in the case.

The move prompted a backlash from opponents of the Vermont Gas pipeline and open government advocates. James Dumont, a lawyer for a citizens group fighting the pipeline, called the board’s actions unconstitutional.

“Any member of the public who disrupts the proceedings can be removed by law enforcement,” Dumont said in a March 25 letter to the Public Service Board. “There is no legitimate reason to exclude members of the public who do not disrupt the proceedings.”

Lisa Barrett, a Huntington woman who opposes the pipeline and planned to attend the upcoming hearings, took that argument a step further. On Friday, she filed a lawsuit in federal court in Burlington alleging that the board violated the public’s rights.

Barrett said she is hoping the federal court will rule that the board must hold the meeting in a public venue large enough to accommodate members of the public. She said the board could still maintain order in that situation by asking disruptive members of the public to leave and, if they refuse, having law enforcement present to remove them.

“We’ve challenged it under the First Amendment,” Barrett said Monday. “The First Amendment of the U.S. Constitution guarantees freedom of expression and the right to petition the government for redress of grievances, and the U.S. Supreme Court has held that that means that the courts need to be open to the public, and this proceeding is just like a court hearing.”

Documents filed in federal court Friday make Barrett’s argument, relying on case law to argue that the First Amendment extends as far as guaranteeing the public’s right to attend the Public Service Board’s August 4 hearing.

The hearing is the forum for Vermont Gas to make its legal argument as to why it’s in the public’s overall interest to allow the company to install the pipeline under Geprags Park, a public park in Hinesburg. A citizens group will also be there to argue against giving Vermont Gas building rights based on a decades-old Vermont Supreme Court decision that says that land already in public use can’t be rededicated to a different public use through eminent domain.

Barrett said it’s the first time she’s ever been the plaintiff in a lawsuit, but that she felt the need to take the “extraordinary step of filing a suit” in order to defend a basic principle of democratic government.

"Democracy requires that the public be interested in the workings of its government, and we've got that interest here [in this case], and the board is quashing it by closing the hearing." - Lisa Barrett, Huntington resident

“Democracy requires that the public be interested in the workings of its government, and we’ve got that interest here [in this case], and the board is quashing it by closing the hearing,” she said.

She added that allowing the press to attend the hearing, as the board said it will do in a clarified order last Friday, isn’t an adequate substitute for full public access.

“What you get when the press is allowed in but the public is not, is ... a filtered knowledge,” she said. “It’s knowledge filtered through the minds of the journalists who are there. It’s important for the public to be there because whether you have TV or you have written reports, when you’re actually there – when the public attends – you see the witness, you see the lawyers, and at the same time you can see the board members. Is somebody rolling their eyes? Is one of the board members yawning? That doesn’t all come across when you have it filtered through a camera or a reporter or the transcript.”

Beyond making allowances for media, Barrett said the board has also been making case-by-case exemptions to its blanket ban on public attendance at the meeting. The lawsuit includes a copy of an email from Rep. Mike Yantachka, who represents the Hinesburg area in the Legislature. The email contains a forwarded message from Public Service Board member Margaret Cheney, which says that the Hinesburg Conservation Commission can send a representative to the hearing even though it is not an official party to the proceedings.

“So that means that the board has really picked who can go to this hearing,” Barrett said.

Update July 26, 2016 3:10 p.m. Public Service Board Clerk Judith Whitney said the board will not comment on the lawsuit because it is pending litigation. Whitney said the Attorney General's office will be handling the case on behalf of the Public Service Board.

A hearing has been scheduled for 10 a.m. on Friday, July 29 at the U.S. District Court in Burlington.