Verlo v. Martinez

• Decision Date: 27 July 2017
• Docket Number: Civil Action No. 15–cv–1775–WJM–MJW
• Citation: 262 F.Supp.3d 1113
• Parties: Eric VERLO, Janet Matzen, and Fully Informed Jury Association, Plaintiffs, v. Chief Judge Michael MARTINEZ, in his official capacity as chief judge of the Second Judicial District, Defendant.
• Court: U.S. District Court — District of Colorado

262 F.Supp.3d 1113

Eric VERLO, Janet Matzen, and Fully Informed Jury Association, Plaintiffs,

v.Chief Judge Michael MARTINEZ, in his official capacity as chief judge of the Second Judicial District, Defendant.

Civil Action No. 15–cv–1775–WJM–MJW

United States District Court, D. Colorado.

Signed July 27, 2017

Andrew Joseph McNulty, David Arthur Lane, Killmer, Lane & Newman, LLP, Denver, CO, for Plaintiffs.

Corelle M. Spettigue, Matthew David Grove, Stephanie Lindquist Scoville, W. Eric Kuhn, Colorado Attorney General's Office, Denver, CO, for Defendant.

FINAL FINDINGS OF FACT & CONCLUSIONS OF LAW

William J. Martinez, United States District Judge

Plaintiffs Eric Verlo, Janet Matzen, and the Fully Informed Jury Association ("FIJA") (collectively, "Plaintiffs") bring this lawsuit to establish that they have a First Amendment right to distribute and discuss literature regarding jury nullification on the exterior grounds of Denver's Lindsey–Flanigan Courthouse ("Courthouse"). (ECF Nos. 1, 13–1.) The Courthouse is where most criminal proceedings take place for Colorado's Second Judicial District (which is coterminous with the City and County of Denver).

The only remaining defendant in this case is the Hon. Michael A. Martinez in his official capacity as Chief Judge of the Second Judicial District. Out of recognition that Plaintiffs' lawsuit does not target Chief Judge Martinez himself but rather a policy promulgated by the Second Judicial District through Chief Judge Martinez, the Court will refer below to Chief Judge Martinez as "the Second Judicial District," unless the context requires otherwise.

This Court previously granted a preliminary injunction requiring the Second Judicial District to refrain from interfering with Plaintiffs' peaceful distribution of their jury nullification pamphlets, or with advocacy of the message contained in those pamphlets ("Preliminary Injunction"). (ECF No. 28.) This case then proceeded through discovery, and the Court held a Bench Trial on April 17 & 18, 2017, to determine whether to convert the Preliminary Injunction into a permanent injunction.

Under Federal Rule of Civil Procedure 52(a)(1), this Court is required to announce the result of the bench trial through written findings of fact and conclusions of law. This order provides those findings and conclusions. For the reasons explained below, the Court finds that the Preliminary Injunction should be dissolved and that judgment should enter in favor of the Second Judicial District.

I. PUBLIC FORUM ANALYSIS, GENERALLY

Understanding everything below turns on understanding the Supreme Court's doctrine of First Amendment "forum analysis," which is a set of inquiries intended to resolve the extent to which the government can limit expressive activities on publicproperty. Much more will be said below about forum analysis, but at the outset it is helpful to understand the basic questions. Those questions are as follows:

1. Is the expression at issue protected by the First Amendment? If so—

2. Is the location at issue a "traditional public forum," a "designated public forum," or a "nonpublic forum"?

3. If the location is a traditional or designated public forum, is the government's speech restriction narrowly tailored to meet a compelling state interest?

4. If the location is a nonpublic forum, is the government's speech restriction reasonable in light of the purpose served by the forum, and viewpoint neutral?

See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc. , 473 U.S. 788, 797–806, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985).

II. STANDING

The Court must first address Plaintiffs' standing to pursue this lawsuit, which goes to this Court's subject matter jurisdiction. See Strich v. United States , 793 F.Supp.2d 1238, 1246 n.1 (D. Colo. 2011) ("The Court has an independent and continuing duty to determine whether subject matter jurisdiction exists."). Framing the standing question requires a relatively lengthy account of how this case began and how it has transformed since then.

A. Early Proceedings & the Preliminary Injunction

Plaintiffs' original complaint was filed against the City and County of Denver and its police chief in his official capacity (together, "Denver"). (ECF No. 1.) The complaint was motivated by the pending prosecution of two activists, Eric Brandt and Mark Iannicelli, whom the State of Colorado had accused of jury tampering by handing out jury nullification literature in front of the Courthouse. (Id. ¶¶ 14–19.) Plaintiffs wished to engage in similar jury nullification advocacy in front of the Courthouse, but feared prosecution, given Brandt's and Iannicelli's experience. (Id. ¶¶ 20–22.) On the same day they filed their complaint, Plaintiffs also moved for a preliminary injunction. (ECF No. 2.)

Two days later, Plaintiffs amended their complaint ("Amended Complaint") to add the Second Judicial District as a defendant and to set forth allegations regarding a Second Judicial District administrative order recently posted on the Courthouse doors. (ECF No. 13–1 ¶ 2.) The order, designated "CJO 15–01" and dated August 14, 2015, was titled "Chief Judge Order Regarding Expressive Activities at the Lindsey–Flanigan Courthouse." (ECF No. 24–1.) This order was amended on August 21, 2015, hours before the preliminary injunction hearing in this Court, and was admitted as an exhibit in the preliminary injunction hearing. (See ECF No. 25–1.) The same document was admitted as Defendant's Exhibit A in the April 2017 bench trial whose outcome is currently under consideration, and the Court will refer to it as the "Plaza Order." As discussed in detail below, the Plaza Order prohibits most expressive activities in a specified geographic area leading up to the Courthouse's two public entrances (the "Restricted Area"). Plaintiffs, in their Amended Complaint, alleged their belief that the Plaza Order was entered in response to Brandt's and Iannicelli's actions. (ECF No. 13–1 ¶ 2.)

One day before the preliminary injunction hearing, Plaintiffs and Denver submitted a joint stipulation ("Stipulation") that the Courthouse Plaza (comprising the Restricted Area and certain additional surroundings) "is a public forum and any content-based regulations must be narrowly drawn to effectuate a compelling state interest and reasonable time, place and manner regulations." (ECF No. 23 ¶ 1.) Plaintiffs and Denver further stipulated "that Plaintiffs' proposed intent of peacefully handing out jury nullification literature to or discussing jury nullification with passersby at the Plaza, without more, does not violate Colorado law." (Id. ¶ 2.) And finally, as relevant here, Denver stipulated that "that it does not intend to enforce the [Second Judicial District's Plaza Order] as written and will only impose content and viewpoint neutral reasonable time, place and manner restrictions on the use of the Plaza, and/or other exterior areas surrounding the Plaza if Denver determines that a compelling need exists to do so." (Id. ¶ 4.) In other words, Denver had essentially taken sides with Plaintiffs against the Second Judicial District on this matter.

Determined to make lemonade out of this lemon, the Second Judicial District then contended that Plaintiffs lacked Article III standing to sue because no threat of enforcement was imminent. (ECF No. 24 at 6–8.) See also Lujan v. Defenders of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ("the irreducible constitutional minimum of standing" includes, among other things, an "actual or imminent" "invasion of a legally protected interest"); Dias v. City & Cnty. of Denver , 567 F.3d 1169, 1176 (10th Cir. 2009) (to obtain prospective relief, a plaintiff must show a "credible threat of future prosecution").

In its order following the preliminary injunction hearing, this Court rejected the standing argument, finding that there still remained a possibility that the Second Judicial District itself could attempt to enforce the Plaza Order:

The Second Judicial District's standing argument assumes that the only way an individual could run afoul of the Plaza Order is through Denver's independent enforcement efforts. But Chief Judge Martinez, and perhaps any other judge in the Second Judicial District, could issue a contempt citation for violating the Plaza Order. Cf.Schmidter v. State , 103 So.3d 263, 265–69 (Fla. Dist. Ct. App. 2012) (distributor of FIJA literature convicted of contempt for violating an administrative order similar to the Plaza Order). The violator would then be required to appear before the issuing judge, and if he or she fails to appear, an arrest warrant can issue. See Colo. R. Civ. P. 107(c). Denver may then be obligated to arrest the violator—not on the authority of the Plaza Order, but on the authority of the judge's contempt citation. Seeid. (requiring the sheriff to carry out the arrest). The Court takes judicial notice of the fact that Colorado state law enforcement officers, not subject to Denver's stipulation, could also effect the arrest of such a hypothetical violator.

Thus, the Court finds that Article III standing still exists....

Verlo v. City & Cnty. of Denver , 124 F.Supp.3d 1083, 1090 (D. Colo. 2015) (" Verlo I ").

The Court then went on to the question of "whether Denver or the Second Judicial District speaks for the First Amendment status of the Courthouse Plaza." Id. at 1093. This was important because, as noted above (Part I), the degree of scrutiny to which this Court must subject First Amendment restrictions turns on whether public property is, on the one hand, a traditional or designated public forum (requiring strict scrutiny), or, on the other hand, a nonpublic forum (requiring a less-strict reasonableness evaluation).

The Court found that Plaintiffs were likely to succeed in proving that Denver controls the First Amendment status of the Courthouse Plaza; and in turn likely to succeed in proving, based on the Stipulation, that the Courthouse Plaza was "at least a designated public forum," maki...