HomeMy WebLinkAbout2016CV1308 - FTN - FORT COLLINS V. CITY OF FORT COLLINS - 040 - DEFENDANT'S MOTION TO QUASH SUBPOENA TO CITY COUNCIL MEMBER RAY MARTINEZIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-01308-RBJ-KLM
FREE THE NIPPLE – FORT COLLINS,
BRITTIANY HOAGLAND,
SAMANTHA SIX,
Plaintiffs,
v.
CITY OF FORT COLLINS, COLORADO,
Defendant.
DEFENDANT’S MOTION TO QUASH SUBPOENA TO
CITY COUNCIL MEMBER RAY MARTINEZ
Defendant City of Fort Collins, Colorado, through its attorneys, Andrew D. Ringel, Esq.,
Gillian Dale, Esq., and Christina S. Gunn, Esq., of Hall & Evans, LLC, and Carrie Mineart
Daggett, Esq., and John R. Duval, Esq., of the Fort Collins City Attorney’s Office, hereby file
this Motion to Quash Subpoena, pursuant to Fed. R. Civ. P. 45(d)(3), as follows:
1. Certificate of Compliance: Pursuant to D.C.COLO.LCivR 7.1(a), the parties
conferred regarding Defendant’s objection to Plaintiffs’ plan to call Ray Martinez as a witness in
the preliminary injunction hearing in this matter. The parties agreed Defendant would waive
service of the subpoena to avoid the cost of service of the subpoena, but would file a motion to
quash to address Defendant’s objection to the proposed testimony.
2. This matter is set for a hearing on Plaintiffs’ Motion for Preliminary Injunction on
December 19, 2016, at 1:30 p.m. Plaintiffs propose to call as a witness Ray Martinez, a current
Case 1:16-cv-01308-RBJ Document 40 Filed 12/15/16 USDC Colorado Page 1 of 9
2
member of the City Council for the City of Fort Collins.
3. Plaintiffs issued a Subpoena to Appear and Testify at a Hearing in a Civil Action
(the “Subpoena”) to Ray Martinez, dated December 7, 2016. On December 9, 2016, Defendant
waived service of the Subpoena, without waiving its objections to Mr. Martinez’s proposed
testimony.
4. At Defendant’s request, Plaintiffs provided counsel for Defendants a list of the
following proposed topics of testimony for Mr. Martinez:
(1) The legislative history of Section 17-142.
(2) The governmental interest served by Section 17-142.
[See Letter from Andy McNulty to Gillian Dale, 12/7/2016, attached as Exhibit 1]. Plaintiffs are
not seeking the testimony of any of the six other council members who voted in favor of the
ordinance.
5. Defendant does not believe either topic proposed by Plaintiffs is properly
addressed by Mr. Martinez, an individual Councilmember, and requiring Mr. Martinez to travel
to Denver to participate in the hearing when the entirety of his testimony will be objected to
would subject him to an undue burden under Fed. R. Civ. P. 45(d)(3)(A)(iv). Defendant therefore
requests the Subpoena be quashed in its entirety.
6. With respect to the first proposed topic of testimony, the legislative history of
Section 17-142 consists of correspondence between members of the public and City Council
members, the Agenda Item Summaries produced for each of the two public City Council
hearings on the ordinance, public input at the hearings, and the comments of City Council
members on record in the course of enacting the ordinance. Defendant intends to introduce at
Case 1:16-cv-01308-RBJ Document 40 Filed 12/15/16 USDC Colorado Page 2 of 9
3
evidence at the preliminary injunction hearing the written correspondence, the Agenda Item
Summaries, a copy of the videotaped meetings, and a transcript of the hearings for the Court’s
consideration. As a result, the entirety of the ordinance’s legislative history will be available to
the Court, and there is no reason for any individual to testify to the legislative history.
7. With respect to the second topic of testimony, the governmental interest served by
Section 17-142 is set forth in the ordinance itself and in its legislative history, and it is
fundamentally inappropriate to require a City Council member to testify as to his reasons for
voting on an ordinance in a particular way. Because Mr. Martinez’s testimony is not necessary or
proper for either subject proposed by Plaintiffs, Mr. Martinez should not be required to testify
and Plaintiff’s subpoena should be quashed.
8. It is improper for this Court to assess the purpose of City Council in enacting
Section 17-142 based on the testimony of Mr. Martinez. Ordinarily a statement made by a single
legislator, even one who is the sponsor of the legislation, should not be given controlling effect
in interpreting the meaning of a particular enactment. Brock v. Pierce County, 476 U.S. 253, 263
(1986); Weinberger v. Rossi, 456 U.S. 25, 35 & n. 15 (1982). Courts in Colorado reject reliance
on post-enactment interpretation provided by single legislator as evidence of a legislative body’s
intent. See, e.g., Legro v. Robinson, 328 P.3d 238, 244 n.2 (Colo. App. 2012) (declining to
consider post-enactment affidavit from bill’s sponsor in interpreting statute); Mason Jar
Restaurant v. Industrial Claim Appeals Office, 862 P.2d 1026, 1030 (Colo. App. 1993) (“The
post-enactment recollections of a legislator do not constitute legislative history and are not
admissible to establishing legislative intent.”); Colorado Dept. of Social Services v. Board of
County Commissioners of Pueblo County, 697 P.2d 1, 21 (Colo. 1985) (“[C]ourts have
Case 1:16-cv-01308-RBJ Document 40 Filed 12/15/16 USDC Colorado Page 3 of 9
4
generally held that subsequent comments about the intent of a legislature by a member of the
legislature that enacted a particular statute are not admissible to establish the legislative intent of
the statute.”); Tracy v. City of Boulder, 635 P.2d 907, 910 (Colo. App. 1981) (“The argument
that the Council acted under an improper motive in reaching its decision is without merit, as the
motivations actuating legislators in making factual determinations are irrelevant so long as such
determinations are supported by competent evidence in the legislative record.”).
9. Federal courts follow the same rule. See, e.g., United States v. Nelson, 277 F.3d
164, 186 (2d Cir. 2002) (eschewing reliance on passing comments of one legislator and casual
statements from floor debates in interpreting statute); Chicksasaw Nation v. United States, 208
F.3d 871, 883 (10th
Cir. 2000), aff’d, 534 U.S. 84 (2001) (“[T]he comments of a single senator,
made years after the statute at issue was enacted, are of little value in interpreting the statute.”);
National Paint & Coatings Assoc. v. City of Chicago, 147 F.R.D. 184, 185 (N.D. Ill. 1993)
(“[T]his court will not permit any inquiry into the subjective motivations of individual
legislators.”); DeVargas v. Mason & Hanger-Silas Mason Co., 911 F.2d 1377, 1386 (10th Cir.
1990) (declining to consider floor statements of congressmen on issue not addressed by statute
itself); Las Vegas v. Foley, 747 F.2d 1294, 1297 (9th Cir. 1984) (preventing inquiry into motives
of legislators where individuals may vote for statute for variety of reasons and “[t]he diverse
character of such motives, and the impossibility of penetrating into the hearts of men and
ascertaining the truth, precludes all such inquiries as impracticable and futile”); Munoz Vargas
v. Romero Barcelo, 532 F.2d 765, 766 (1st
Cir. 1976) (“It is well settled that if legislation serves
a legitimate purpose on its face, it may not be challenged by questioning the motives of the
legislators. This principle cannot be circumvented by pursuing an action against the individual
Case 1:16-cv-01308-RBJ Document 40 Filed 12/15/16 USDC Colorado Page 4 of 9
5
legislators, etc., who caused the legislation to be enacted.”) (citations omitted); Tenney v.
Brandhove, 341 U.S. 367, 377 (1951) (“The holding of this Court in Fletcher v. Peck, 6 Cranch
87, 130, that it was not consonant with our scheme of government for a court to inquire into the
motives of legislators, has remained unquestioned.”).
10. One federal district court explained the difficulties with assigning a legislative
intent based on the comments of a single member of a legislative body in the following terms:
[E]specially where the law or policy under review is the result of an institutional
process, such as a vote of a multi-member legislature, council or board rather than
an action taken by an individual decision maker, the purpose of the disputed law
or policy should normally be discerned from the plain meaning of the words used;
the official legislative history, if any; the manner in which the law or policy has
been interpreted and applied (if such demonstrable experience is available); and,
lastly, the general social condition or historical background which led up to the
adoption of the law or policy. The individual, and quite possibly varied, purposes
or intentions of the several operative decision makers, especially when those
views are known with respect to less than a majority of those voting or deciding,
would have little or no probative value.
Adler v. Duval County School Board, 851 F.Supp. 446, 451 (M.D. Fla. 1994), aff’d in part and
vacated in part on other grounds, 112 F.3d 1475 (11th
Cir. 1997) (citations omitted).
11. Fundamentally, the subjective motive of any member of the City Council to vote
in favor of Section 17-142 is irrelevant to this Court’s evaluation of its legality or
constitutionality. United States v. O'Brien, 391 U.S. 367, 382-83 (1968) (courts will not strike
down an otherwise constitutional statute the basis of an alleged illicit legislative motive). In
Missouri Knights of the Ku Klux Klan v. Kansas City, Missouri, 723 F.Supp. 1347, 1352 (W.D.
Mo. 1989), a federal district court described the important distinction between evaluations of the
motive of individual or groups of legislators and the legislative intent behind a particular
enactment as follows:
Case 1:16-cv-01308-RBJ Document 40 Filed 12/15/16 USDC Colorado Page 5 of 9
6
There has been much confusion in these proceedings surrounding ‘legislative
purpose’ and ‘legislative motive.’ They are not synonymous, although the
distinction has not always been made clear in the cases on the issue. Legislative
motive or, more specifically, the motive an individual legislator has for voting for
a particular piece of legislation is irrelevant and will not be grounds to invalidate
an otherwise constitutional law or resolution.
However, legislative motive should not be confused with legislative purpose. The
latter is an essential inquiry in determining if a particular governmental restriction
of speech is justified under the applicable rule of decision. The phrase ‘legislative
purpose’ is used interchangeably with ‘governmental interest’ or ‘legislative
interest’ but nonetheless simply describes the legitimate interest of the legislature
that is being advanced by the subject legislation. . . . The governmental purpose or
interest advanced by Resolution No. 62655 is a relevant inquiry and will be
investigated by this Court in its analysis of the resolution’s constitutionality. Why
any particular councilman voted for the resolution, however, will be irrelevant to
the issue of the resolution’s constitutionality.
(Citations omitted); see also Rhames v. City of Biddeford, 204 F. Supp. 2d 45, 52 (D. Me. 2002)
(declining to consider motivation of one out of nine city councilors for enacting ordinance).
12. In Grossbaum v. Indianapolis-Marion County Building Authority, 100 F.3d
1287 (7th
Cir. 1996), cert. denied, 520 U.S. 1230 (1997), the Seventh Circuit refused to consider
the argument that a local rule banning displays by private individuals or groups was enacted in
retaliation for a legal challenge to a prior rule banning displays of religious items which resulted
in the earlier rule being overturned. The Seventh Circuit identified several reasons for this
institutional reluctance by the courts to decide constitutional claims based on an interpretation of
the motives of legislators:
A number of factors explain this reluctance to probe the motives of legislators and
administrators. For starters, the text of the Constitution prohibits many
government actions but makes no mention of governmental mentes reau (i.e.,
guilty minds). The First Amendment, for example, forbids Congress and (through
the Fourteenth Amendment’s Due Process Clause) the States from making laws
abridging the freedom of speech—a far different proposition that prohibiting the
intent to abridge such freedom. . . . Just as we would never uphold a law with
Case 1:16-cv-01308-RBJ Document 40 Filed 12/15/16 USDC Colorado Page 6 of 9
7
unconstitutional effect because its enactors were benignly motivated, an illicit
intent behind an otherwise valid government action indicates nothing more than a
failed attempt to violate the Constitution.
Beyond these theoretical objections to investigating motive, practical
considerations also suggest caution. Governmental actions may be taken for a
multiplicity of reasons, and any number of people may be involved in authorizing
the action. . . . Moreover, once a court finds an illicit motive, may the legislature
or administrative body ever take the same action again without the imputation of
improper intent?
Id. at 1293 (citations and internal quotations omitted); see also O’Brien, 391 U.S. at 384 (“What
motivates one legislator to make a speech about a statute is not necessarily what motivates scores
of others to enact it, and the stakes are sufficiently high for us to eschew guesswork.”).
13. As the above precedents demonstrate, it is inappropriate for this Court to attempt
to evaluate the subjective motivation of any individual member of the City Council in
determining the legality or constitutionality of Section 17-142. Instead, the proper focus of this
Court’s analysis should be the objective evidence of the purpose of the ordinance, including its
language, its legislative history, the effect of the ordinance, relevant statutes and case law, and
facts surrounding the enactment of the ordinance. Foley, 747 F.2d at 1297 (“The relevant
governmental interest is determined by objective indicators as taken from the face of the statute,
the effect of the statute, comparison to prior law, facts surrounding enactment of the statute, the
stated purpose, and the record of proceedings.”). As a result, this Court should prohibit Plaintiffs
from inquiring into the subjective motivation of Mr. Martinez at the preliminary injunction
hearing in this matter.
14. Because the individual motivation of any single legislator is not relevant to the
analysis of the constitutionality of Section 17-142, Plaintiffs should not be permitted to call Mr.
Martinez as a witness. Defendant therefore requests that the Subpoena to Mr. Martinez be
Case 1:16-cv-01308-RBJ Document 40 Filed 12/15/16 USDC Colorado Page 7 of 9
8
quashed, in its entirety.
WHEREFORE, for all of the foregoing reasons, Defendant City of Fort Collins,
Colorado, respectfully requests that this Court quash the December 7, 2016, subpoena issued to
City Council Member Ray Martinez, preclude his testimony at the preliminary injunction hearing
before this Court, and enter all such additional relief as the Court deems just and appropriate.
Dated this 15th
day of December, 2016.
Respectfully submitted,
/s/ Gillian Dale
Andrew D. Ringel, Esq.
Gillian Dale, Esq.
Christina S. Gunn, Esq.
HALL & EVANS, L.L.C.
1001 Seventeenth Street, Suite 300
Denver, CO 80202-2052
Phone: 303-628-3300
Fax: 303-628-3368
ringela@hallevans.com
daleg@hallevans.com
gunnc@hallevans.com
/s/ John Duval
Carrie Mineart Daggett, Esq.
John R. Duval, Esq.
Fort Collins City Attorney’s Office
300 LaPorte Avenue
Fort Collins, CO 80521
Phone: 970-221-6520
Fax: 970-221-6327
cdaggett@fcgov.com
jduval@fcgov.com
ATTORNEYS FOR DEFENDANT CITY OF
FORT COLLINS, COLORADO
Case 1:16-cv-01308-RBJ Document 40 Filed 12/15/16 USDC Colorado Page 8 of 9
9
CERTIFICATE OF SERVICE (CM/ECF)
I HEREBY CERTIFY that on the 15th
day of December, 2016, I electronically filed the
foregoing DEFENDANT’S MOTION TO QUASH SUBPOENA TO CITY COUNCIL
MEMBER RAY MARTINEZ with the Clerk of Court using the CM/ECF system which will
send notification of such filing to the following e-mail addresses:
David A. Lane, Esq.
dlane@kln-law.com
Andy McNulty, Esq.
amcnulty@kln-law.com
Jessica K. Peck, Esq.
jessica@jpdenver.com
/s/ Denise Gutierrez, Legal Assistant to
Gillian Dale
Hall & Evans, L.L.C.
Attorneys for Defendants
1001 Seventeenth Street, Suite 300
Denver, CO 80202-2052
Phone: 303-628-3300
Fax: 303-628-3368
daleg@hallevans.com
Case 1:16-cv-01308-RBJ Document 40 Filed 12/15/16 USDC Colorado Page 9 of 9