March 28 (Bloomberg) -- Occupy New Haven protesters fighting eviction from the town green next to Yale University are challenging a private, colonial-era group with ties to the Ivy League school that, with the city, controls the park.
Members of the protest group, one of many to grow out of the Occupy Wall Street movement, have camped on the green since Oct. 15 to protest income inequality and unemployment. They accused the city in a lawsuit of trying to drive them out on behalf of the green’s proprietors, an unelected committee led by Yale Law School Professor Emeritus Drew Days, a former U.S. solicitor general in the Clinton administration, in time for Yale graduation ceremonies in May.
The city, which administers the land, served the eviction notice March 12 “at the request of the proprietors so that the area adjacent to the New Haven Green would be free from signs of political protest,” according to the protesters’ complaint. The eviction is “part of the annual effort to create a Potemkin-like aura of serenity in downtown New Haven,” they said.
A court order allowing protesters to stay on the green that was set to expire at 11:59 p.m. was extended to 5 p.m. April 9. U.S. District Judge Mark R. Kravitz in New Haven said he expects to rule before then on whether to allow the camp to remain on the green longer. Today the attorneys said they aren’t seeking to stay indefinitely.
‘Offensive’ to Values
The protesters, in their March 13 complaint, seek a court order allowing them to stay indefinitely and dissolving the proprietors’ committee, which they said “purports to govern public property, but by means secret, seemingly hereditary and offensive to the values and principles of a republic.”
“The current committee is believed to be the only colonial vestige in the U.S. still maintaining title to land in public use,” according to a filing by the protesters. The green should be “open and available to all,” they said in that filing.
John Horvack, an attorney for New Haven, said the city can stop camping on the green without violating people’s rights under the U.S. Constitution’s First Amendment, which guarantees freedom of speech and assembly.
Kevin Smith, a lawyer for the protesters, said the camp structures themselves were expressions of free speech because they show “what it’s like to be a part of forgotten America -- and an America that some would like to forget.”
Members of the Committee of the Proprietors of Common and Undivided Lands in New Haven serve for life, according to the lawsuit. At least four of the five proprietors are connected to Yale by marriage, education or employment, according to the members’ online profiles.
Kravitz said he intended to decide the case solely on First Amendment grounds, not on whether the existence of the proprietors violated the state constitution.
Norman Pattis, the plaintiffs’ lead attorney, asked the judge to clear up the governance of the green.
“What has come of this country if we’re going to turn this over to proprietors?” Pattis asked the judge. “This is not a theocracy. This is not a plantation. This is a republic.”
Yale is the biggest employer in New Haven, a city of 129,779, according to the 2010 census. The university has 12,000 workers, according to its Office of New Haven and State Affairs.
The university pays at least $15 million a year in taxes, fees and donations to the city, according to the office. The school said it draws 550,000 visitors who spend a total of $40 million a year. A document it prepared in 2007 said Yale contributed 11 percent of the city budget, while maintaining its own police department, trash hauling and fire marshal.
Tom Conroy, a spokesman for the 311-year-old university, said Yale hasn’t taken a position on the Occupy movement or the group’s lawsuit.
“I don’t see the relevance of the lawsuit’s mention of Yale’s role in the city,” Conroy said in an e-mail.
Rob Smuts, New Haven’s chief administrative officer and a Yale graduate, declined to comment while the dispute is being litigated.
The 16-acre (6.5 hectare) green has been a public meeting spot since 1638 and once served as the city’s graveyard, said James Campbell, librarian for the New Haven Museum. Thousands of bodies still lie beneath it.
At first, “it was owned by everybody,” Campbell said in a phone interview. The proprietors’ committee was established by the British colony of Connecticut in 1724 “and has functioned as a separate organization from town government since,” he said.
By 1805, when the committee’s membership became too numerous, it was limited to five people, according to “The New Haven Green and the American Bicentennial” by Rollin Osterweis.
Proprietors are chosen privately and meet privately. Its members include Anne Calabresi, a descendant of one of the original landowners and the wife of Guido Calabresi, a federal appeals court judge in New York and former dean of the Yale law school. Calabresi and Days declined to comment while the case is pending.
“We do not concede that the green is a governmental space,” Days said at a March 14 court hearing. “It is a space that is private, that’s available to the public with limited regulations on its use.”
The camp is on the side of the green closest to Yale’s Old Campus, where first-year students live and where graduates march during commencement. It’s a mixture of tents, canopies, and lean-tos, many of them painted with protest slogans. The central part of the camp, where protesters meet at least twice weekly, has a large structure heated by a makeshift solar panel.
New Haven businesses “are not pleased with the way the green looks,” said Anthony Rescigno, president of the Greater New Haven Chamber of Commerce. “They don’t think it encourages tourism and people coming downtown.”
In a March 26 memo that doesn’t address the question of ownership, the city said it has the right to regulate the time, place and manner of public protests.
The city said the protesters’ structures are damaging trees and grass. The eviction is an attempt to “prevent a small group of individuals from becoming indefinite, full-time residents on the green.”
The city said the number of police calls to the green totaled 52 from mid-October to mid-March, compared with 18 during the same period a year earlier.
Occupy Wall Street demonstrators camping in New York’s Zuccotti Park, a privately owned public space, were evicted in November and a state judge said that they failed to show they had a First Amendment right to stay in the park. In December, a Massachusetts judge said police could evict protesters from a Boston square without court approval.
Claire Criscuolo, owner of Claire’s Corner Copia, the restaurant closest to the New Haven camp, said it hasn’t affected her business.
“I wish I didn’t have to see a bunch of tents,” she said, “but it deserves to be there. It’s pretty much what the founders had in mind.”
The case is Mitchell v. City of New Haven, 12-cv-00370, U.S. District Court, District of Connecticut (New Haven).
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