HomeMy WebLinkAbout2020CV2192 - DONNA WALTER & MARK MILLIMAN V. GOVERNOR JARED POLIS, JEFFREY J. ZAYACH, TOM GONZALEZ, AND DARIN ATTEBERRY - 041 - ATTEBERRY REPLY IN SUPPORT OF MOTION TO DISMISS
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 20-cv-02192-RBJ
DONNA WALTER, and
MARK MILLIMAN,
Plaintiffs,
v.
GOVERNOR JARED POLIS, in his official capacity as Governor of Colorado,
JEFFREY J. ZAYACH, in his official capacity as Executive Director, Boulder County
Public Health, and
DARIN ATTEBERRY, in his official capacity as City Manager, City of Fort Collins,
Defendants.
_____________________________________________________________________
REPLY BRIEF FROM DEFENDANT DARIN ATTEBERRY
_____________________________________________________________________
Defendant Darin Atteberry, through counsel, hereby respectfully submits this
Reply Brief, as follows:
1. First, Plaintiffs argue Roman Catholic Diocese of Brooklyn v. Cuomo,
208 L.Ed.2d 206 (2020), supersedes Jacobson v. Massachusetts, 197 U.S. 11 (1905),
and is applicable here. Neither proposition is correct. To avoid duplication, Mr. Atteberry,
incorporates herein the arguments and authorities presented by the other Defendants in
their replies on this issue.1 Plaintiffs’ reliance on the concurrence in Cuomo as
superseding Jacobson and creating another applicable standard is simply wrong.
1 The same bases articulated by the other Defendants also serves to distinguish
the Supreme Court’s remand in High Plains Harvest Church v. Polis, 2020 U.S. LEXIS
6098 (Dec. 15, 2020), based on Cuomo.
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2. Second, Plaintiffs argue without any grounding in any of their claims the
mask orders cannot survive strict scrutiny. [ECF 30, at 7-9]. However, the strict scrutiny
standard applies only if Plaintiffs state a viable claim and this Court determines strict
scrutiny applies to that claim. Simply asserting and assuming strict scrutiny applies until
this Court makes the threshold legal determination of its applicability is incorrect.
3. Third, Plaintiffs contend the mask orders compel speech in violation of the
First Amendment. [ECF 30, at 9-10]. Plaintiffs’ conclusory assertion does not make it so.
Absent from Plaintiffs’ analysis is any response to the City’s argument distinguishing
between government action compelling speech and government action proscribing
conduct. [ECF 24, at 7-10]. The Supreme Court’s compelled speech precedent does not
support any conclusion requiring a mask during a public health emergency represents
compelled speech or an inherently expressive activity within the ambit of any prior
precedent. Moreover, precedent during COVID-19 rejects the conclusion mask mandates
are either compelled speech or an inherently expressive or rejects such a claim on other
grounds. See, e.g., Parker v. Wolf, 2020 U.S. Dist. LEXIS 233348 at *35-36 (MD. Pa.
Dec. 11, 2020) (dismissing compelled mask wearing claim on standing grou nds); Minn.
Voters Alliance v. Walz, 2020 U.S. Dist. LEXIS 183108 at *28-32 (D. Minn. Oct. 2, 2020)
(rejecting compelled speech claim to mask mandate); Stewart v. Justice, 2020 U.S. Dist.
LEXIS 220373 at *13-17 (S.D. W.Va. Nov. 24, 2020 (same); Antietam Battlefield KOA
v. Hogan, 461 F.Supp.3d 214, 236-37 (D. Md. 2020) (same). These courts analyze the
First Amendment compelled speech issues and reject the Plaintiffs’ argument sometimes
applying both strict and intermediate scrutiny. Plaintiffs offer no contrary authority.
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4. Fourth, Plaintiffs contend the mask orders are content-based not content
neutral. [ECF 30, at 10-11]. Plaintiffs address only the Governor’s argument and fail to
address or distinguish the direct precedent relied upon by the City hol ding COVID-19
restrictions are content neutral. [ECF 24, at 10-12]. More recent COVID-19 precedent
not previously cited holds pandemic restrictions are content-neutral. See, e.g., Let Them
Play MN v. Walz, 2020 U.S. Dist. LEXIS 239106 at *11-18 (D. Minn. Dec. 18, 2020);
Hund v. Cuomo, 2020 U.S. Dist. LEXIS 212698 at *15-24 (W.D.N.Y. Nov. 13, 2020);
Bimber’s Delwood, Inc. v. James, 2020 U.S. Dist. LEXIS 195823 at *32-37 (W.D.N.Y.
Oct. 21, 2020).
5. Fifth, Plaintiffs maintain the substantive due process right to refuse medical
treatment is implicated because masks are medical devices. Again, Plaintiffs offer no
precedent whatsoever to support their theory other than a strained interpretation of the
Food, Drug, and Cosmetic Act. [ECF 30, at 11 -12]. As the City previously argued,
available precedent does not support expansion of Cruzan to Plaintiffs’ circumstances.
[ECF 24, at 12-14]. Further, if this Court accepts Plaintiffs’ invitation, the federal courts
would become the new determiners of the propriety of many different public health
measures challenged in the name of refusing medical treatment. A public health measure
designed to prevent infection in a pandemic is distinct from medical care.2 The lack of
2 “Public Health and medicine approach the challenge of health and health care
from distinct, complementary perspectives. In medicine, the focus is on the individual
patient, within the context of family and community. In public health, the focus is on the
health of populations, with expression of illness found in the lives of individuals.”
Commentary: Public Health and Medicine Where the Twain Shall Meet, American
Journal of Preventative Medicine, Vol. 1, Issue 4, Supplement 3, October 1, 2011, found
at https://doi.org/10.1016/j.amepre.2011.07.013
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sufficient guideposts in the substantive due process realm makes this a particularly
fraught task for this Court. See Collins v. City of Harker Heights, Tex., 503 U.S. 115,
125 (1992) (expressing the Supreme Court is “reluctant to expand the concept of
substantive due process because guideposts fo r responsible decision making in this
uncharted area are scarce and open-ended.”).
WHEREFORE, for all the foregoing reasons, as well as all of the arguments and
authorities presented in his Motion to Dismiss and in the Motions to Dismiss of the other
Defendants, Defendant Darin Atteberry respectfully requests this Court dismiss all
Plaintiffs’ claims against him in their entirety with prejudice, and for all other and further
relief as this Court deems just and appropriate.
Dated this 11th day of January, 2021.
Respectfully submitted,
s/ Andrew D. Ringel .
Andrew D. Ringel, Esq.
of Hall & Evans, L.L.C.
1001 17th Street, Suite 300
Denver, CO 80202
Phone: 303-628-3453; Fax: 303-628-3368
ringela@hallevans.com
and
John R. Duval, Esq.
Deputy City Attorney
Fort Collins City Attorney’s Office
P.O. Box 580
Fort Collins, CO 80522
Phone: (970) 221-6520
jduval@fcgov.com
ATTORNEYS FOR DEFENDANT
DARIN ATTEBERRY
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CERTIFICATE OF SERVICE (CM/ECF)
I HEREBY CERTIFY that on the 11th day of January, 2021, I electronically filed
the foregoing with the Clerk of Court using the CM/ECF system which will send notification
of such filing to the following e-mail addresses:
Mark C. Patlan, Esq.
mpatlan@patlanlw.com
Grant T. Sullivan, Esq.
grant.sullivan@coag.gov
Peter G. Baumann, Esq.
peter.baumann@coag.gov
David E. Hughes, Esq.
dhughes@bouldercounty.org
Catherine R. Ruhland, Esq.
cruhland@bouldercounty.org
s/Nicole Marion, Legal Assistant of
Hall & Evans, L.L.C.
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