Coalition for Equal Rights, Inc. v. Owens
| Decision Date | 19 October 2006 |
| Docket Number | Civil Action No. 06-cv-01145-LTB-PAC. |
| Parties | COALITION FOR EQUAL RIGHTS, INC., a Colorado Corporation; and Shari Warren, d/b/a Spirit Keeper, Plaintiffs, v. Bill OWENS, Governor, State of Colorado; John Suthers, Colorado Attorney General; Rick Grice, Executive Director, Colorado Department of Labor and Employment; Joe Morales, Executive Director, Colorado Department of Public Safety; Dennis Ellis, Executive Director, Colorado Department of Public Health and Environment; Mike Coffman, Colorado State Treasurer; All in their official capacities; and Scott William Storey, in his official Capacity as District Attorney, First Judicial District; Michael Richard Morrissey, in his Official capacity as District Attorney, Second Judicial District; Lee Allen Hawke, in his official capacity as District Attorney, Third Judicial District; John R. Newsome, in his official capacity as District Attorney, Fourth Judicial District; Mark D. Hurlbert, in his official capacity as District Attorney, Fifth Judicial District; Craig Stephen Westberg, in his official Capacity as District Attorney, Sixth Judicial District; Geoffrey R. Nims, in his official capacity as District Attorney, Seventh Judicial District; Larry R. Abrahamson, in his official Capacity as District Attorney, Eighth Judicial District; Collen. D. Truden, in her official capacity as District Attorney, Ninth Judicial District; William Thiebaut Jr., in his official Capacity as District Attorney, Tenth Judicial District; Molly K. Chilson, in her official capacity as District Attorney, Eleventh Judicial District; Peter L. Comar, in his official capacity as District Attorney, Twelfth Judicial District; Robert E. Watson, in his official capacity as District Attorney, Thirteenth Judicial District. Bonnie S. Roesink, in her official capacity as District Attorney, Fourteenth Judicial District; Michael John Davidson, in his official Capacity as District Attorney, Fifteenth Judicial District; Rodney Dann Fouracre, in his official Capacity as District Attorney, Sixteenth Judicial District; Donald Spence Quick, in his official Capacity as District Attorney, Seventeenth Judicial District; Carol A. Chambers, in her official capacity as District Attorney, Eighteenth Judicial District; Kenneth R. Buck, in his official capacity as District Attorney, Nineteenth Judicial District; Mary T. Lacy, in her official capacity as District Attorney, Twentieth Judicial District; Peter G. Hautzinger, in his official capacity as District Attorney, Twenty-First Judicial District; James W. Wilson, in his official capacity as District Attorney, Twenty-Second Judicial District; and The State of Colorado, Defendants. |
| Court | U.S. District Court — District of Colorado |
Joseph Francis Becker, Mountain States Legal Foundation, Lakewood, CO, for Plaintiffs.
Jason R. Dunn, Colorado Attorney General's Office, Henry Richard Reeve, Denver District Attorney's Office, Karen Elizabeth Lorenz, Richard F. Hennessey, Pendleton, Friedberg, Wilson & Hennessey, P.C, Denver, CO, Thomas R. Raynes, District Attorney Office, Montrose, CO, James A. Carleo, James A. Carleo, Attorney at Law, Pueblo, CO, for Defendants.
This Order addresses cross-motions for summary judgment under Fed.R.Civ.P. 56 filed by Plaintiffs the Coalition for Equal Rights, Inc., ("CER") and Shari Warren, ("Warren"), and defendants the State of Colorado, Governor Bill Owens and 21 of 22 Colorado District Attorneys (referred to herein as "the State Defendants"). CER and Warren (referred to herein collectively as "Plaintiffs") seek summary judgment declaring the Colorado Clean Indoor Air Act ("the Act") unconstitutional as violating the equal protection provisions of the Colorado and United States Constitutions, substantive due process under the Colorado and United States Constitutions, the provisions of the Colorado Constitution barring Special Legislation, and the provisions of the Colorado and United States Constitutions barring retroactive legislation. The State Defendants seek summary judgment declaring the Act constitutional. For the reasons stated below, Plaintiffs' motion is DENIED and the State Defendants' motion is GRANTED.
The Act, signed into law March 27, 2006, and effective as of July 1, 2006 imposes broad restrictions on indoor smoking. The Act's preamble states that "it is in the best interest of the people of this state to protect nonsmokers from involuntary exposure to environmental tobacco smoke in most indoor areas," and defines as its purpose "to preserve and improve the health, comfort, and environment of the people of this state by limiting exposure to tobacco smoke." Colo.Rev.Stat. § 25-14-202. The Act prohibits smoking in most indoor areas, including "any place of employment that is not exempted," Colo.Rev.Stat. § 25-14-204(1)(k)(I), including "food service establishments,"), "bars"(m), "limited gaming facilities and any other facilities in which any gaming or gambling activity is conducted,"(n), "billiard or pool halls"(s), and "facilities in which games of chance are conduced."(t).
Exempt from the Act's prohibitions on indoor smoking are cigar-tobacco bars, airport smoking concessions, and licensed casinos. Colo.Rev.Stat. § 25-14-205. The Act makes it unlawful for an owner or manager to violate any provision of the Act, and also makes it unlawful for a person to smoke in a prohibited area. Colo. Rev.Stat. §§ 25-14-208(1) & (2). Violators of the Act are subject to a Class 2 Petty Offense, punishable by a fine of no more than $200 for a first offense, not to exceed $300 for a second offense and not to exceed $500 for each additional offense. Colo.Rev.Stat. § 25-14-208(3).
CER is a non-profit corporation based in Colorado. It is an association of more than 500 businesses, including owners of bars and taverns, bowling alleys, billiard clubs, restaurants, liquor stores, bingo halls and others. Many CER memberbusinesses, prior to implementation of the Act, allowed smoking, either in part or all of their establishments. Warren is the owner of Spirit Keeper Tavern in Black Forest, Colorado. Spirit Keeper is licensed to serve alcoholic beverages and offers live music, cards, billiards and other entertainment. Prior to implementation of the Act, at least 90 percent of Spirit Keepers' patrons smoked, and Warren allowed smoking throughout the restaurant. CER asserts that its members have suffered financial losses from the Act's ban on smoking in their restaurants and other establishments.
Plaintiffs filed their initial complaint June 15, 2006, seeking injunctive and declaratory relief, but not money damages. Also on June 15, 2006 Plaintiffs sought a Temporary Restraining Order ("TRO") to prevent the law from going into effect. After a TRO Hearing June 23, 2006 at which both parties made oral arguments, I issued an Order June 23, 2006 denying the TRO ("June 2006 Order"). On that same day, pursuant to Fed.R.Civ.P. 65(a)(2), I combined the preliminary injunction hearing with the trial on the merits.
Before me now are cross-motions for summary judgment filed by both parties, as well as an Amici brief in support of the State Defendants filed by Interested Parties the American Cancer Society, Great West Division, the American Heart Association, Pacific/Mountain Affiliate, the American Lung Association of Colorado and the Colorado Tobacco Education and Prevention Alliance. Defendant Thiebaut does not join the motion of the other 21 District Attorneys, and files his own response to Plaintiffs' motion.
The purpose of a summary judgment motion is to assess whether trial is necessary. White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir.1995). I shall grant summary judgment if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A fact is material if it might affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). While the parties dispute some facts relating to the actual injuries CER's member organizations have suffered as a result of the Act, no facts are in dispute that are relevant to disposing of the constitutional issues at stake in this case.
Plaintiffs argue that the Act is facially unconstitutional. A facial challenge requires the challenger to "establish that no set of circumstances exists under which the Act would be valid." U.S. v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). It is unclear whether the Supreme Court actually intended lower courts to interpret the Salerno standard Washington v. Glucksberg, 521 U.S. 702, 739-740, 117 S.Ct. 2302, 138 L.Ed.2d 772 (1997) literally. See (Stevens, J., concurring). See also U.S. v. Castillo, 140 F.3d 874, 879 (10th Cir.1998). However, plaintiffs in a facial challenge must, at the very least, establish that "the invalid applications of a statute `must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep.'" Glucksberg, 521 U.S. at 740, 117 S.Ct. 2258.
Additionally, constitutional challenges must overcome the heavy presumption in favor of the constitutionality of state laws. See Hodel v. Indiana 452 U.S. 314, 323, 101 S.Ct. 2376, 69 L.Ed.2d 40 (1981). Challengers to a state law "bear the burden of proving it unconstitutional beyond a reasonable doubt." Mosgrove v. Town of Federal Heights, 190 Colo. 1, 543 P.2d 715, 717 (1975); See also Colorado Criminal Justice Reform Coalition v. Ortiz, 121 P.3d 288, 291 (Colo.Ct.App.2005).
Plaintiffs contend that the Act violates the equal protection guarantees of the United States and Colorado Constitutions, the...
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