Lawsuits
Federal judge to hear evidence in Colorado ‘ballot selfie’ lawsuits Wednesday
DENVER – A federal judge will hear evidence Wednesday morning in two lawsuits filed last week that challenge Colorado’s law banning voters from taking pictures with their ballots.
The two lawsuits filed last week have been lumped in to one evidentiary hearing, which will begin at 9 a.m. in the U.S. District Court of Colorado Wednesday morning.
Both suits – one filed by a state representative and a young voter; the other filed by a spokeswoman for the Libertarian Party and two voters – challenge Colorado Revised Statute CRS §1-13-712, a law that has origins in the late 1800s and which forbids Coloradans from showing their completed ballots to anyone else or revealing how they voted.
The statute stems from a law first written in 1891 that said, “A voter who shall…allow his ballot to be seen by any person, with an apparent intention of letting it be known how he is about to vote…shall be punished by a fine of not less than five nor more than one hundred dollars.”
Among the defendants in the suits are Colorado Secretary of State Wayne Williams and Attorney General Cynthia Coffman.
The plaintiffs in both cases want a judge to issue a preliminary injunction against the state enforcing the law, saying portions of it violate free speech protections under the First and/or Fourteenth Amendments.
Deputy Secretary of State Suzanne Staiert said in support of the statute last week:
“We believe the current law protects the integrity of the election and protects voters from intimidation or inducement. In fact, given Colorado’s unique election system and rise of social networking, the prohibition may be more important in Colorado than in other states and may be more timely today than ever.”
The “ballot selfie” issue has created headlines nationwide in the past week, as states have differing laws regarding taking pictures of one’s ballot. Singer Justin Timberlake was in hot water after posting a selfie with his ballot after he voted in Tennessee, though laws in that state are unclear.
A report by Vox says ballot selfies are legal in 22 states and Washington, D.C., illegal in 16 states, and the law is unclear in the remaining 13 states.
On Friday, the Sixth Circuit Court of Appeals upheld a similar rule banning “ballot selfies” in Michigan.
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Federal judge allows portions of ‘Free the Nipple’ lawsuit against Fort Collins to move forward
DENVER – A federal judge will allow a lawsuit claiming a Fort Collins statute that prohibits women from going topless in public violates the U.S. and Colorado constitutions to move forward.
U.S. District Court of Colorado Judge R. Brooke Jackson ruled Thursday he would allow the lawsuit, brought on behalf of two women and the Fort Collins chapter of the “Free the Nipple” organization, to move forward on the grounds the Fort Collins statute violates the Fourteenth Amendment of the U.S. Constitution, as well as the Colorado Constitution’s Equal Rights Amendment.
The city of Fort Collins, the defendant in the lawsuit, had sought to dismiss those claims, as well as a claim by the plaintiffs that the statute violated the Free Speech Clause of the First Amendment.
Judge Jackson agreed to dismiss the First Amendment claim, saying planned topless protests “do not constitute protected speech,” as he wrote in his order.
“[P]laintiffs’ conduct does not warrant First Amendment protection because they have not adequately stated that there is a great likelihood that their nudity’s message about the sexualized nature of certain laws is likely to be understood by those who view them topless in public,” Judge Jackson wrote, noting further that case law has shown that “public nudity itself is not inherently expressive of any particular message.”
But he denied the city’s motion to dismiss the other two claims in the suit.
In regards to the Fourteenth Amendment’s Equal Protection Clause claim, Judge Jackson found the plaintiffs had indeed “met [the] burden” of a violation as the city’s reasons for enacting the ordinance (“adequately summed up as Fort Collins’ desire to protect the public’s moral sensibilities,” according to the judge) “are also themselves premised on unconstitutional stereotypes of, generalizations about, and prejudices against women.”
The judge points to past case law that showed laws were in violation of the Fourteenth Amendment if it was passed to “create or perpetuate the legal, social, [or] economic inferiority of women.”
He also pointed to changes in case law over the 20th century that occurred as courts began to acknowledge that “real differences” between men and women perpetuated by courts over the years could only be used in determining discrimination violations when the laws compensate for historic inequities.
Judge Jackson determined the plaintiffs successfully argued the law fell into the way “real differences” had been used in old case law – which he wrote “adequately allege[s] an equal protection violation.”
He also upheld the argument by the plaintiffs that the Colorado Constitution’s Equal Rights Amendment should be applied to the case. It argues that laws “based exclusively on sexual status receive the closest judicial scrutiny,” and Judge Jackson agreed to do so since he had already ordered the Fourteenth Amendment claim to proceed.
The city of Fort Collins sent out a news release saying the order “does not lessen the City’s chances of ultimately prevailing in this lawsuit.”
“As the case moves forward to the hearing on the motion for preliminary injunction, we look forward to the opportunity to present evidence supporting the City’s position that the other two claims are also without merit,” Fort Collins City Attorney Carrie Daggett said in the same release.
Attorney David Lane, who is representing the plaintiffs in the case, said the judge’s order was “a great victory for women’s rights and equality under the law.”
In an interview with Denver7, Lane said the case was “absolutely” strong.
“Had we given him 10 reasons why this [ordinance] was unconstitutional and he agreed with one, it’s still unconstitutional,” Lane said. “What we have is a purely legal issue: is the statute constitutional or isn’t it? It’s far more of a legal determination, and [Judge Jackson] has already made his determination.
Up next in the case is an evidentiary hearing to determine whether a preliminary injunction against the Fort Collins ordinance should be issued. The hearing is set for Dec. 19 in front of Judge Jackson.
Lane speculated that should Judge Jackson grant the preliminary injunction, which he said he thinks will happen, Fort Collins would immediately appeal to the 10th Circuit Court of Appeals.
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Judge asks for more time in deciding if charges to move forward against former El Paso Co. sheriff
COLORADO SPRINGS, Colo. – It will be another couple weeks before a judge rules whether there is probable cause to move forward on charges against the former El Paso County sheriff and two other high-ranking officers in the office.
Former El Paso County Sheriff Terry Maketa and former Undersheriff Paula Presley were indicted on nine charges that include kidnapping, extortion and tampering with evidence.
Former EPCSO Commander Juan San Agustin faces kidnapping and false imprisonment charges.
Maketa and Presley are accused of pressuring a deputy’s girlfriend to change her story regarding an alleged domestic violence incident that left the girlfriend with bruising.
But after going through the sheriff’s office, she was ultimately arrested for domestic violence, driving under the influence and harassment charges. However, no sobriety test was ever performed.
The indictments of the three say they all worked together to push the case against the woman forward despite there being little to no evidence the investigation should continue.
Marketa and Presley are also accused of threatening to end a contract with a correctional facility health care company whose employee declined to run Presley’s campaign for sheriff.
Denver7’s news partners at KRDO report another hearing is scheduled in the case for Dec. 19. Defense attorneys want some of the charges dropped altogether.
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Federal judge hears first statements in Denver homeless lawsuit
DENVER – A federal judge on Wednesday held the first of what is likely to be many hearings on a lawsuit filed on behalf of thousands of homeless people in Denver alleging the city and some of its employees have violated their constitutional rights and dignity.
Judge Craig B. Shaffer allowed dozens of homeless people into the courtroom without identification after an order last week.
He first pointed out the case has still not been certified as a class-action lawsuit. Though a motion to establish a class of homeless people was filed in early September, it does not have to be ruled on until Oct. 28.
READ: The full lawsuit can be found here.
Several plaintiffs and supporters rallied outside the Federal Courthouse just before the hearing
“We’re here to end the sweeps,” said plaintiff Jerry Burton.
Burton told Denver7 that 13 homeless people have died from hypothermia this year.
“Not because they were drunk,” he said. “Not because they were drug addicts. Not because they had mental issues… because of hypothermia. That can’t happen in a world-class city.”
Burton said no one will stop him from sleeping on sidewalks and putting up a tent, if the weather warrants.
He said he won’t stay in a shelter, because every time he does, he comes down with an illness.
“I will be out here,” he said. “I refuse to move. Police? I don’t care. The Mayor? You suck!”
He also said he can’t get an apartment because of his credit.
Lead plaintiff Garry Anderson said he’s been homeless in several cities and that Denver “is by far the worst.”
He said Seattle allows the homeless to set up tent cities under the freeway.
“Police actually patrol the tent city,” he said. “They have dumpsters out along the alleyways. They’ve set up portable toilets for the homeless community. They can do it here.”
Anderson also said that homeless people have a responsibility to not leave anything behind when they sleep outside.
“When I get up in the morning, you never know I was there that night,” he said. “I don’t leave garbage. In fact, I’ll pick up other people’s garbage, just because that’s what we need to do.”
City’s Response
When asked about the city’s response to the lawsuit, the Mayor’s Deputy Communications Director, Jenna Espinoza replied via email:
“The City and County of Denver spends nearly $50 million a year on direct and indirect homeless services. In the last several years, the City has increased direct services, including overnight and day shelter services as well as increased access to housing for all people. Our focus is on connecting people who are on the streets to the individualized assistance needed to help them stabilize their lives and move forward. The city’s practice is to first try and connect people to services and treatment, and if that doesn’t work, people are given notice, usually multiple times, before any enforcement action is taken. These are complex challenges and we strive to be as compassionate as possible while also ensuring safety and public health for all Denver residents.”
Judge’s concerns
Judge Shaffer voiced concerns over discovery in the case, as both defense attorneys and prosecutors pointed to difficulty in finding applicable information that could be used as exhibits in the case.
The defense said it had already put together more than 100 gigabytes of data for its discovery.
The lawyers said they had been using keywords such as “camping ban,” “Denver Rescue Mission,” and “homeless sweeps” in search to put together discovery, which Judge Shaffer called “fundamentally problematic.”
Attorneys for the plaintiffs argue in the suit that the city has engaged in “a systemic evisceration of thousands of displaced persons’ constitutional rights in order to clear the way for new housing and economic development in the Downtown Denver area.”
The argument comes after the city cleared homeless people from public spaces near downtown shelters – actions that allegedly continue, according to one homeless advocacy group.
In court Wednesday, those same attorneys argued the “enforcement of the policy in place is unconstitutional.”
Much of Wednesday’s discussion revolved around the defendants in the lawsuit. Aside from the city, Mayor Michael Hancock, Police Chief Robert White, Public Works Manager Jose Cornejo and the mayor’s chief of staff, Evan Dreyer, are among other defendants named in the case.
But Judge Shaffer explained to attorneys for the plaintiffs that some of those specific employees could claim qualified immunity in the case, which protects them from having to pay out civil damages in cases like this.
Some of the individual defendants have yet to answer the original complaints, which allows time for lawyers for the plaintiffs to drop some of those individuals from the lawsuit if they wish.
Judge Shaffer suggested the plaintiffs’ lawyers should instead focus on the city and county.
He also all-but invalidated the claim that the homeless people’s Eighth Amendment rights were being broken, noting that clause is normally applied to people who are incarcerated.
A status conference on the case is set for Oct. 20 at 10 a.m. – just less than a week before the deadline for the class to be certified.
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After subpoena, VA turns over documents on costly hospital
DENVER — The Veterans Affairs Department turned over documents to Congress on Wednesday in response to a subpoena demanding information about how the cost of a Denver-area VA hospital soared more than $1 billion over budget.
VA spokeswoman Linda West said the department gave the House Veterans Affairs Committee some of the documents that lawmakers wanted and that more were on the way. Continue reading
Lesbian Boulder woman sues Whole Foods over discrimination allegations
DENVER – A Boulder woman is suing Whole Foods Market, claiming she was forced to resign from her graphic artist position at the Boulder flagship store after she was continually harassed by her co-workers and superiors because she was gay.
Jennifer Johnston filed the discrimination lawsuit in U.S. District Court in Denver Wednesday.
Johnston, who is married to a woman, claims she was forced to eventually resign after she reported the harassment, which she claims was on the basis of her sexual orientation and gender. The defendant in the federal suit is Whole Foods Market Rocky Mountain/Southwest, L.P., which is a limited partnership based in Texas.
Her immediate supervisor, Tawny Duckworth, allegedly asked on several occasions if Johnston had “gaydar” and at one point decided to dress up like her co-workers – emulating Johnston with “negative lesbian stereotypes and biases.” She also allegedly told Johnston her shoes made her “unf—able,” among other negative comments.
According to the suit, Johnston reported the alleged abuse to her general manager in early July 2015. She had started at the location in December 2014 after transferring from a Pennsylvania store.
The suit says the general manager initially wanted to help Johnston, offering to help her switch her schedule around to avoid working with Duckworth and saying he’d conduct a two-week investigation of the allegations.
After two other co-workers were interviewed by the general manager about the harassment, one of them told Johnston she “hated her” and stopped speaking with Johnston. Johnston also reported that incident to the general manager, the suit says.
It says though Johnston was never formally interviewed by the GM during the investigation, she was called into his office about two weeks after the initial report. The GM and a human resources worker told her she was going to be written up for using “inappropriate language” and at one point playing a Lil’ Jon song, which her co-workers deemed inappropriate.
Johnston was also told she wouldn’t be allowed to change her schedule after all.
She was also issued a written warning, allegedly skipping a step in the Whole Foods disciplinary process. An email from the GM attached as an exhibit to the suit says he thought Johnston was being “manipulative and deceiving.”
Johnston resigned the next day, saying work became “intolerable.”
She sought unemployment benefits and found in her unemployment hearing Duckworth had admitted some of the harassment to the general manager, but that the general manager hadn’t asked her about other alleged incidents of harassment.
The suit calls Whole Foods’ investigation “half-hearted.”
Johnston is seeking damages in excess of $75,000, as well as back and front pay, including benefits, and costs for emotional distress.
She and her attorneys have started a petition to garner support for the suit.
A spokesperson for Whole Foods sent the following statement in response to the lawsuit, attributed to Global Vice President of Communications Brooke Buchanan:
“Discrimination in any form is unacceptable to Whole Foods Market. We were notified of this filing today and are looking into the situation.”
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Colorado woman files federal suit claiming state law inhibits right to deny business to gay couples
DENVER – A Christian woman claims Colorado law violates her ability to deny business to supporters of same-sex marriage and has filed a federal lawsuit seeking to overturn the laws on the basis they violate the U.S. Constitution.
Lorie Smith, who owns 303 Creative LLC, a graphic and web design company based in the Denver area, filed the suit Tuesday in Colorado’s U.S. District Court.
Read the lawsuit in full by clicking here.
She claims that Colorado law that says refusing people services on the basis of sexual orientation, among other reasons, is unconstitutional and violates her First and Fourteenth Amendment rights.
Smith would like to use her business “to celebrate and promote God’s design for marriage as an institution between one man and one woman,” according to the suit, and claims her inability to say so on her website because of the state laws violates her rights.
However, her website already says so in as many words, despite the lawsuit saying she “is refraining” from expressing her views.
“My primary objective is to design and create expressive content,” her website reads. “Because of my faith, however, I am selective about the messages that I create or promote – while I will serve anyone I am always careful to avoid communicating ideas or messages, or promoting events, products, services, or organizations, that are inconsistent with my religious beliefs.”
The suit continually cites Bible passages and says Smith “believes that God is calling her to promote and celebrate His design for marriage…between one man and one woman only.”
Violations of the Colorado statute could lead to fines of up to $500 per case, though there has been no indication from the Colorado Civil Rights Division or the Colorado Civil Rights Commission, which are both defendants in the suit, that she has ever been hit or threatened with one.
The suit, which was brought by attorneys for the Arizona-based group Alliance Defending Freedom, as well as Denver lawyer Michael L. Francisco, even cites the recent U.S. Supreme Court decision that legalized same-sex marriage nationwide, Obergefell v. Hodges, arguing the decision reinforces the Fourteenth Amendment’s protection of “choices that define their personal identity and beliefs.”
It also cites prior cases in Colorado involving different bakeries that either denied a gay couple service or denied an antagonist of same-sex marriage service, saying the Civil Rights Division and Commission muddied the Colorado statutes they enforce.
Smith’s attorneys said she would not be speaking to the media on the matter.
But Freedom for All Coloradans said the lawsuit was another attempt to undermine the Supreme Court’s decision.
“Allowing business owners to refuse service to customers whom they dislike, or disapprove, will open a can of worms and make it more difficult to enforce Colorado’s laws that ensure businesses are open to everyone.”
The case has yet to be scheduled on the court’s docket.
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10,000 employees join suit alleging Chipotle wage theft
DENVER — Close to 10,000 current and former Chipotle workers have joined a Colorado woman’s class-action lawsuit alleging employees were forced to work off the clock without pay.
Leah Turner, a former manager at a Parker Chipotle restaurant, initially filed an individual federal lawsuit in March 2013, but it was dismissed. Her attorneys filed the class-action suit in September 2014.
Turner, who was an hourly, non-exempt employee at the store from March 2010 to May 2011, claims she was forced to clock out after working 40 hours in a week, but was required to continue working and attending after-hours meetings without pay.
“I did it because I was tired of getting taken advantage of,” said Turner. “My general manager at the time would call me and tell me to pull my labor reports, and if our labor percentage was over a certain amount, she would start having me clock out and having other employees clock out. And we would continue to work until we finished our stuff for the day.”
It says that the pressure on managers to keep employee payroll costs down weighed into promotions within individual stores and possibly the company.
Denver-based attorney Andrew Quisenberry, who is among the lawyers representing clients in the case, told Denver7 reporter Jaclyn Allen that the number of people who have joined the suit means the accusations levied were happening nationwide.
“It was preached to us over and over about ‘Food with Integrity,’ and yeah, it’s kind of a double standard there,” said Turner, who added that she hopes to send a message with her lawsuit. “I hope they stop taking advantage of people, and they do the right thing. People work hard for their money.”
A spokesman for Chipotle, which operates out of Denver, maintained Thursday the company believes the case has no merit, pointing out that the 10,000 who have joined the suit represent only about 3.5 percent of current and past employees.
“A lawsuit is nothing more than allegations, and…in no way means that we have done anything wrong,” said Chipotle communications director Chris Arnold.
But it is the latest black eye for the company, which has been plagued with negative press in the past year.
An E. coli outbreak last year sickened dozens of people in several states, and a former employee won a lawsuit earlier this year after a judge determined she was discriminated against for being pregnant.
The case is now entering its discovery phase.
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PNM working to lure Facebook data center to New Mexico
Facebook appears to be interested in building a new data center in New Mexico, according to filings made with the state Public Regulation Commission Friday by the Public Service Company of New Mexico (PNM).
PNM filed a motion with the PRC Friday asking it to consider fast-tracking an application it filed that would provide Facebook special service rates and allow PNM to build new renewable energy infrastructure specifically for Facebook.
The filing says Facebook approached PNM earlier this year to see what could be done that would entice the company to build a new data center in New Mexico.
In June, a power company in Utah filed a similar application with Utah’s public service commission that is expected to be approved or denied by August 31.
PNM’s filing requests the PRC rule on the fast-tracked application by the same date in order to stay in contention with Utah for the new data center.
“Lengthier regulatory proceedings in New Mexico will jeopardize New Mexico’s chances of [Facebook] selecting New Mexico as the site for its new data center,” the filing says.
But PRC will have to forgo several of its typical procedures in order to approve the application by August 31. PNM’s motion asks the PRC to approve the contract without a public hearing; to vary from its 60-day requirement if no protest to the contract is filed; to shorten the time by which the initial purchase agreement will be approved and to extend a purchase agreement into a long-term agreement after six months.
PNM is looking to initially provide the new renewable energy resources – likely through new solar infrastructure – for 100 percent of Facebook’s possible energy needs, which the utility company would recover from the company.
The agreement also seeks to provide an opportunity to increase infrastructure and power needs should the proposed data center grow over time.
PNM says the initial power procurement would be 30 MW of solar energy, which could increase to 60 MW and possibly 100 MW in the future according to other documents attached in the filing.
“PNM’s filing is a necessary step to ensure that we could meet the very specific needs of the potential new customer. We regularly participate in state and local economic development efforts to attract new businesses and jobs to New Mexico,” said PNM spokeswoman Ryan Baca. “This is a responsible and creative strategy to support the effort to bring new business and jobs to New Mexico.”
Late last month, the Los Lunas Village Council authorized the first $5 billion of what is likely to be six equally-sized industrial revenue bonds for an internet data company called Greater Kudu, LLC, which is a subsidiary of a larger, yet-undisclosed internet company.
The proposed center in Los Lunas would be built at the 850-acre Huning Ranch business park near I-25 and Highway 6.
It’s unclear if Greater Kudu, LLC is linked to Facebook. Facebook has not yet committed to where it will build its new data center, but a spokesperson said the company is always evaluating potential new sites. More details of the filings can be found here.
Monitor says APD use-of-force investigations out of line, but other areas have improved
The Albuquerque Police Department continues to struggle in implementing new use-of-force policies on the street and administrative levels but is improving in several other areas of focus under the settlement agreement with the U.S. Department of Justice, independent monitor Dr. James Ginger wrote in the agreement’s third progress report.
The 352-page report, which is the third of 10 that will be released under the settlement agreement, was released Friday and covers the period of December 2015 through the end of March 2016. The remaining reports will be issued incrementally over the remainder of the 41 months of the settlement agreement. Continue reading