Monday December 19, 2011
BRATTLEBORO -- A Windham County Sheriff's deputy had the legal right to enter a property marked with no trespassing signs to serve a civil notice, according to the Vermont Attorney General in an opinion issued on Nov. 1.
Last March, Sgt. Randall Johnson of the Dover Police Department was working as a part-time deputy when he attempted for the third time to deliver a debt collection notice to a Whitingham resident.
Johnson was not in uniform, was not driving a sheriff's cruiser and did not announce himself as a law enforcement officer.
A Vermont State Trooper visited Johnson at his home following the third visit to the Whitingham residence and issued an unlawful trespassing citation. The state trooper told Johnson that the property is marked with no trespassing signs and even though he is a law enforcement officer, he is not allowed to enter without the permission of a court.
Following the incident, Windham County Sheriff Keith Clark asked the Attorney General for an opinion on the issue because he felt the law was "very ambiguous."
The Windsor County State's Attorney's Office declined to charge the deputy for trespassing after Clark told his deputies not to trespass without explicit authority of the court.
Johnson's citation was sent from Windham to Windsor courts because he has regular interactions with court personnel in Brattleboro.
At the time, Windsor County State's Attorney Robert Sand said it was appropriate to solicit an opinion from the Attorney General because "It did not seem fair to me to use the criminal court system to determine whether the deputy's conduct was lawful or not."
Nevertheless, said Sand, he believed the deputy did break the law.
Assistant Attorney General John Treadwell told the Reformer Friday if sheriff's departments can't serve papers on defendants, the court system would grind to a halt.
"If the court order can't be served as required then the system doesn't function," he said.
"The opinion was in line with what we have been practicing for years and with what our interpretation of the law was," said Sheriff Clark.
Still, said Clark, it's just an opinion that doesn't prevent such a citation from being issued in the future.
"I've told my deputies when serving civil process if the property is posted against trespassing, call me and get permission and look at the type of case it is to make sure it's a legitimate issue and not someone using the court system to harass another party," said Clark.
"I think Sheriff Clark is being very prudent," said Windham County State's Attorney Tracy Shriver. "I agree with an exercise of caution."
Sand said though he appreciates the Attorney General rendering its opinion, he disagrees with it and bases his interpretation of the law on State v. Kirchoff.
"The Kirchoff case interprets the Vermont Constitution to create broader privacy rights for Vermont Citizens posting their land than under federal law," said Sand. "If Kirchoff prevents the entry onto land in connection with a criminal matter in which there is probably a more compelling public interest in allowing the entry, then it seems to me that that prohibition would certainly extend to a private civil matter where the reason to enter onto the land is essentially to do the bidding of a creditor."
Sand said he has spoken with the Windsor County sheriff and "Indicated my hope that he will not engage in the conduct that appears to be acceptable according to the AG's opinion."
Instead, he said, a deputy should first try to contact the defendant by phone and request permission to serve the papers. If the deputy is not successful, he or she should then let the plaintiff know. The plaintiff can then decide whether to ask the court to issue an order allowing a deputy to enter a posted property.
Allen Gilbert, executive director of American Civil Liberties Union of Vermont, said the opinion was not a surprise.
"When courts give authority for somebody from law enforcement to serve papers on people, the officer serving the papers has to be able to go on the person's property in most cases," he said.
What was surprising to Gilbert was that the state trooper issued the citation at all.
"It's hard to believe this hasn't come up before and (some officers) haven't received training to understand what things can be done -- where, why, how and by whom," he said.
Gilbert said people are served papers for their own benefit so they are aware an action has been lodged against them in a court -- a due process notification of a pending action.
"This is so a judgment can't be entered against you that you don't know about," he said.
According to the Attorney General, "A common sense reading of applicable Vermont statutes ... supports the conclusion that law enforcement officers possess the ability to enter onto private property marked with ‘No Trespassing signs to serve both civil and criminal process without committing criminal trespass."
In face, wrote the Attorney General, Vermont law requires court orders to be served to a defendant and permits delivery of said documents "leaving it at the person's dwelling house ..."
Vermont statutes also permit sheriffs to "serve either civil or criminal process, anywhere within the state."
In a number of court decisions around the nation, the ability of a police officer to enter private property to fulfill a legal obligation has been affirmed, wrote the Attorney General.
While the Vermont Constitution requires a search warrant where the landowner "has taken steps, such as fencing or posting, to indicate that privacy is exactly what is sought ... (the Vermont Supreme Court) did not indicate that this standard would prohibit law enforcement to enter private property to serve civil papers provided they remain within their statutory authority or the authority a court grants in a particular case."
Bob Audette can be reached at raudette@reformer.com, or at 802-254-2311, ext. 160.
