HomeMy WebLinkAbout2020CV2192 - DONNA WALTER & MARK MILLIMAN V. GOVERNOR JARED POLIS, JEFFREY J. ZAYACH, TOM GONZALEZ, AND DARIN ATTEBERRY - 045 - POLIS LETER TO COURT RE MOTIN TO DISMISS ON MOOTNESSPHIL WEISER Attorney General
NATALIE HANLON LEH Chief Deputy Attorney General
ERIC R. OLSON Solicitor General ERIC T. MEYER Chief Operating Officer
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STATE OF COLORADO
DEPARTMENT OF LAW
RALPH L. CARR
COLORADO JUDICIAL CENTER 1300 Broadway, 10th Floor Denver, Colorado 80203 Phone (720) 508-6000
State Services Section
June 4, 2021 The Honorable R. Brooke Jackson Alfred A. Arraj United States Courthouse A938 901 19th Street, Denver, Colorado 80294 RE: Motion to Dismiss in Walter v. Polis, et al. – No. 1:20-cv-2192-RBJ Dear Judge Jackson: In accordance with the Court’s 12/8/20 Practice Standards on Motions to Dismiss, Defendant Jared Polis, in his official capacity and on behalf of all Defendants in this action, submits this letter outlining the arguments Defendants intend to raise jointly in moving to dismiss this action as moot. It also summarizes Defendants’ conferrals with Plaintiffs.
The Amended Complaint [ECF No. 14] challenges three orders and regulations issued by Defendants requiring face-coverings in most public spaces: (1) Executive Order D 2020 138, (2) Boulder County Public Health Order 2020-04, and (3) Fort Collins Emergency Regulation 2020-1 (the “Original Orders”). See, e.g., Am. Compl. ¶¶ 19–21. The only relief sought by Plaintiffs is prospective. Specifically, declaratory judgments that the Original Orders are unlawful and injunctions prohibiting Defendants from “implementing, administering, and enforcing” the Original Orders. Id. at Prayer for Relief.
Last month, in accordance with guidance from the Centers for Disease Control and Prevention, each Defendant either terminated or amended the Original Orders. The upshot is that Plaintiffs, like all Coloradans, are no longer required to wear face coverings in most public indoor spaces. And nothing in the Amended Complaint suggests Plaintiffs fit into one of the narrow classes of people for whom face coverings are still required. Accordingly, Plaintiffs’ claims for prospective relief are now moot. And because Plaintiffs only brought claims for prospective relief, the case should be dismissed. See, e.g., Jordan v. Sosa, 654 F.3d 1012, 1024–25, 1038 (10th Cir. 2011) (discussing mootness of claims for injunctive and declaratory relief and dismissing case as moot).
These are the grounds Defendants intend to raise in a joint motion to dismiss this matter as moot. As a component of subject matter jurisdiction, mootness can be raised at any stage of the proceedings. Ind v. Colo. Dep’t of Corr., 801 F.3d 1209,
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1213 (10th Cir. 2015). And counsel for defendants are obligated to inform the Court of facts that may moot the case. See, e.g., Bd. of License Comm’rs of Town of
Tiverton v. Pastore, 469 U.S. 238, 240 (1985) (dismissing case as moot and reminding counsel “that they have a continuing duty to inform the Court of any development which may conceivably affect the outcome of the litigation”) (quotations omitted).
Conferral
After the Original Orders were amended or terminated, counsel for the Defendants collectively provided Plaintiffs’ counsel copies of the new operative orders on May 24, 2021, and asked whether those new orders would lead Plaintiffs to dismiss this action. See Ex. A, Conferral Chain at 3. After not receiving a response, counsel for the Governor called Plaintiffs’ counsel on May 27, 2021, and received a recording indicating that the user had “blocked all incoming calls.” Id. at 2. Defendants’ counsel then emailed Plaintiffs’ counsel again. Id.
On May 28, 2021, Plaintiffs’ counsel responded to Defendants inquiry. According to the response, Plaintiffs do not believe their claims are mooted because defendants “are likely to repeat” their alleged violations, and because their claims for declaratory and injunctive relief remain even after the Original Orders have been rescinded or amended. Id.
Defendants’ counsel then attempted to schedule a call to discuss Defendants’ motion to dismiss. This included an email on June 2, 2021 requesting a call on June 3, 2021. Id. at 1. After not receiving a response, counsel for the Governor called Plaintiffs’ counsel on June 4, 2021, and again received a recording that the user had “blocked all incoming calls.”
Accordingly, it is Defendants’ understanding that Plaintiffs oppose dismissal of this action based on mootness.
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Sincerely, PHILIP J. WEISER Attorney General
s/Grant T. Sullivan GRANT SULLIVAN* Assistant Solicitor General
s/Peter G. Baumann PETER G. BAUMANN* Campaign Finance Enforcement Fellow Telephone: (720) 508-6349/6152 Email: grant.sullivan@coag.gov peter.baumann@coag.gov
Attorneys for Governor Jared Polis cc: All counsel of record
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