IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.

12-cv-3095-MSK PIKES PEAK JUSTICE & PEACE COMMISSION; STAR BAR PLAYERS; GREENPEACE; DENVER VOICE; JAMES BINDER; RONALD MARSHALL; LAUREL ELIZABETH CLEMENTS MOSLEY; ROGER BUTTS; Plaintiffs, v. CITY OF COLORADO SPRINGS, COLORADO, Defendant. ______________________________________________________________________________ PLAINTIFFS RESPONSE AND OPPOSITION TO DEFENDANTS MOTION FOR CONTINUANCE OF HEARING AND EXTENSION OF TIME [DOC. 9] ______________________________________________________________________________ Plaintiffs, by and through their counsel, Rebecca T. Wallace of the AMERICAN CIVIL LIBERTIES FOUNDATION OF COLORADO, hereby submits Plaintiffs Response and Opposition to Defendants Motion for Continuance of Hearing and Extension of Time [Doc. 9], as follows: Since November 14, 2012, the public has understood through a media account in Colorado Springs most prominent newspaper that should Defendant pass the challenged ordinance, it would become effective on December 2, 2012.1 On the day the ordinance passed

Daniel Chacon, Council Outlaws Panhandling, Solicitation Downtown, THE GAZETTE, November 14, 2012, available at http://www.gazette.com/articles/zone-147292-downtowncouncil.html.

City Council, another media account stated that the ordinance is expected to go into law within five to ten days.2 In the weeks since the first media account was published, Defendant has done nothing to suggest to the public that effective date would be delayed beyond that time. To the contrary, City Council members and Mayor Bach repeatedly made mention during public and widely attended City Council meetings that it was imperative the ordinance be in effect for the holiday shopping season which necessarily includes December. As a result, many individuals who would be affected by the ordinance are almost certainly under the impression that the effective date of the ordinance is rapidly approaching. Absent a prompt hearing clarifying their rights, these individuals will very soon likely be chilled from exercising their constitutional right to engage in solicitation as defined by the ordinance, based on their reasonable even if mistaken belief, that the ordinance is in effect. Apparently in an attempt to gain a continuance of the emergency hearing, Defendant has performed an about-face by formulating a new plan to delay the effective date of the ordinance to December 19, 2012. This new plan involves, among other things: the Mayor holding up the ordinance for five days and the clerk holding up the ordinance for another week or so. It cannot be doubted that Defendant only thought up this plan in response to the instant press for an emergency hearing. Only yesterday, on November 28, 2012, City Attorney Chris Melcher represented in an email to Plaintiffs counsel that the ordinance may be in effect as early as December 5, 2012. See Ex. 1, Email to Rich from Melcher, November 28, 2012. That same day,

Siera Santos, No Solicitation Ordinance for Downtown Passes in 8-1 Vote, KOAA News, November 27, 2012, available at http://www.koaa.com/news/no-solicitation-ordinance-for-downtown-passes-in-8-1vote/

Mr. Melcher said on a telephone call with Plaintiffs counsel that the ordinance would be in effect sometime during the week of December 3, 2012. Later that day, Senior Attorney Anne Turner contacted undersigned counsel via telephone and explained the new plan for delaying the effective date of the ordinance. Ms. Turner asked Plaintiffs position on a motion to continue the hearing, up to and including December 19, 2012. After consulting with other of Plaintiffs counsel, undersigned counsel offered a compromise to Ms. Turner an unopposed continuance until next week, with a request for a hearing toward the end of the week. Undersigned counsel explained to Ms. Turner that any continuance may well chill the rights of Colorado Springs residents and visitors who wish to engage in solicitation as defined by the ordinance, given the media account stating that the ordinance would become effective December 2, 2012, as well as numerous statements by City Council members and the Mayor that the ordinance was to be in effect over the holiday shopping season. Nonetheless, in effort to be courteous and non-obstructionist, and given Defendants stated commitment to delay the effective date of the ordinance as well as Defendants counsels understandable desire for additional time to prepare for the hearing, undersigned counsel indicated that Plaintiffs agreed to a modest continuance of the hearing, up to and including December 7, 2012. Ms. Turner indicated that she would consult with her legal team. Shortly thereafter, Ms. Turner again telephoned undersigned counsel and indicated that Defendant agreed to this compromise. Based on this agreement, Ms. Turner drafted an unopposed motion for a continuance which she forwarded to Plaintiffs counsel this morning, November 29, 2012. Ex. 2, Email to Wallace from Turner with Proposed Motion attached, November 29, 2012. Several hours later, Ms. Turner again contacted undersigned counsel by telephone and stated that Defendant had

changed its mind and would no longer be seeking a motion for continuance up to and including December 7, 2012, but instead would seek a motion for continuance to December 7, 2012, or later. When Defendant reneged on the compromise that the parties had reached, undersigned counsel indicated that Plaintiffs would oppose the motion in order to ensure Plaintiffs are given an opportunity to explain fully to the court the circumstances surrounding the scheduling of this hearing and the necessity for a prompt judicial evaluation of the ordinance. While Plaintiffs are concerned that any continuance will chill constitutional rights, Plaintiffs remain reasonable and willing to work out a time for a hearing during the week of Dec. 3, 2012 based on Plaintiffs understanding that a later hearing would better suit Defendants schedule. Importantly, any contention by Defendant that it has been caught by surprise by this lawsuit, or that Defendants attorneys need significant time to prepare for a short hearing on the law relating to the constitutionality of the ordinance, should not be well taken. According to a public statement made by Mr. Melcher at a City Council meeting, he has had a team of four attorneys researching the constitutionality of this type of ordinance for one year. During the course of at least four City Council meetings over the past six months, Mr. Melcher has addressed countless questions from the public and City Council members about the constitutionality of the ordinance. Further, the ACLUs position that the ordinance is overbroad and violates the Fourth Amendment has been well known for many months. In fact, as early as August of this year, counsel for Plaintiffs, Mark Silverstein, wrote an email to Colorado Springs Attorney Kenneth Hodges explaining some of the reasons that the ordinance was unconstitutional and offering to

speak with Mr. Hodges by phone to discuss the issue in more detail. See Ex. 3, Email from Silverstein to Hodges, August 27, 2012. Several media accounts have reported that the ACLU would likely bring litigation against the City of Colorado Springs if the ordinance passed, and the Mayor recently stated publicly that the City was ready to meet the legal challenge.3 Likewise, Mr. Melchers recent media quote suggests that he acknowledges Plaintiffs stance but disagrees with their assessment of the facts.4 Based on the foregoing, while Plaintiffs recognize that drafting any substantive brief and preparing for legal argument takes time, Defendants task in this particular case related to preparing for the emergency hearing should not be onerous. Defendants suggestion in its brief that Plaintiffs counsel has been anything less than courteous, flexible, and truthful in coordinating Plaintiffs filings and the emergency hearing are wholly disingenuous. See Doc. 9, p.4, n1. After filing the Complaint on the evening of November 27, 2012, counsel for Plaintiffs immediately attempted to contact counsel for Defendant, Chris Melcher, by telephone but was only able to leave a voicemail regarding the filing. Counsel for plaintiffs, Sara J. Rich, then sent an email to Mr. Melcher informing him of the filing of the Complaint and attaching all documents that had thus far been filed in the case. Ex, 4, Email to Melcher from Rich, Nov. 27, 2012. Having not heard from Mr. Melcher by the morning of November 28, 2012, Ms. Rich called Mr. Melchers office and cell phone and left two voicemail messages informing him of

E.g., Daniel Chacon, Council Outlaws Panhandling, Solicitation Downtown, THE GAZETTE, November 14, 2012, available at http://www.gazette.com/articles/springs-147814-downtown-continue.html.
4

John M. Glionna, Amid Debate, Colorado Springs May Join Cities Banning Panhandling, Los Angeles Times, November 15, 2012, available at http://www.latimes.com/news/nation/nationnow/la-na-nncolorado-springs-panhandling-ban-20121115,0,5758805.story

Plaintiffs intention to file a Motion for Temporary Restraining Order and that she wanted to discuss scheduling matters related to Plaintiffs request for a hearing. Later that morning, counsel for the parties, including undersigned counsel, Ms. Rich and Mr. Melcher, participated in a phone conference and discussed the impending filing of the Motion for Temporary Restraining Order and scheduling issues related to Plaintiffs request for an immediate hearing. During that phone conversation, Ms. Rich informed Mr. Melcher that after filing the Motion for Temporary Restraining order she intended to contact the Courts chambers and provide contact information for counsel for the parties in the event that the Court was interested in coordinating with the parties with regard to scheduling a hearing on Plaintiffs Motion. Mr. Melcher stated that if counsel for Plaintiffs intended to speak directly with the Judge he would need to participate on that phone call. Ms. Rich told Mr. Melcher that Plaintiffs counsel certainly was not intending to participate in any ex parte communications, but only intended to contact the Courts chambers in order to attempt to facilitate scheduling the hearing. Mr. Melcher indicated that if Your Honor wanted to conduct a phone conference with the parties regarding scheduling a hearing, he was available for such a conference on the morning of November 29, 2012, but that he was unavailable at any time on November 28, 2012 due to allday, back-to-back meetings. Ms. Rich stated that when she contacted the Courts chambers she would inquire as to whether Your Honor wanted to schedule a phone conference with the parties on the morning of November 29, 2012 or, in the alternative, Ms. Rich would attempt to obtain possible available dates on the Courts calendar for a hearing prior December 5, 2012. Ms. Rich also indicated that after contacting the Courts chambers regarding scheduling she would communicate any available dates to Mr. Melcher via email.

Soon after filing Plaintiffs Motion for Temporary Restraining Order, Ms. Rich contacted the Courts chambers, as she had indicated to Mr. Melcher that she would. Ms. Rich informed the woman who answered the phone that Plaintiffs had just filed a Motion for Temporary Restraining Order and she was calling to provide contact information for the parties in case it would assist the Court in scheduling a hearing on Plaintiffs Motion. The woman who answered the phone informed Ms. Rich that all necessary contact information was available to the Court through CM/ECF, and that anything that would be done would be done through order of the Court. Ms. Rich followed up by confirming that the parties should expect that the Court would schedule a hearing when the Court deemed it necessary at the Courts convenience. The woman responded in the affirmative, and that was the end of the conversation. Approximately 2 hours later, the Court issued an Order setting a hearing on Friday November 30, 2012 [Doc. 7]. Given the conversation that occurred between undersigned counsel, Ms. Rich and Mr. Melcher in which Mr. Melcher was made fully aware of the fact that Plaintiffs counsel would be contacting the Courts chambers to discuss scheduling, Plaintiffs counsel was shocked to the see the suggestion made in footnote 1 of Defendants Motion for Continuance of Hearing and Extension of Time [Doc. 9] that Plaintiffs counsel was misleading in any way. In fact, Mr. Melcher explicitly acknowledged during the phone conversation that Plaintiffs counsel would be contacting the Courts chambers to assist the Court with scheduling matters. During a phone conversation this morning with counsel for Defendant, Anne Turner, undersigned counsel learned that there was clearly a misunderstanding about Ms. Richs phone call to the Courts chambers. In order to clear up the confusion, Ms. Rich sent an email to Mr. Melcher, copying Ms. Turner, explaining the facts related to the phone call as detailed above. Ex. 5, Email from Rich to Melcher/Turner, November 29, 2012. Prior to Defendants filing of

the motion for continuance, undersigned counsel also explained these facts to Ms. Turner by telephone and indicated that an explanatory email would be forthcoming. Given undersigned counsels and Ms. Richs attempts to clear up any confusion or misunderstanding between the parties, undersigned counsel was understandably shocked to see the misstatement in footnote 1 of Defendants Motion for Continuance [Doc. 9]. Notably, Defendants Motion was filed after Ms. Rich sent the clarification email. WHEREFORE, Plaintiffs respectfully request that this Court deny Defendants Motion for Continuance of Hearing and Extension of Time [Doc. 9]. Respectfully submitted this 29th day of November 2012. s/ Rebecca T. Wallace ___________________________ Rebecca T. Wallace, Staff Attorney AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF COLORADO 303 E. 17th Ave. Suite 350 Denver, CO 80203-1256 Telephone: (720) 402-3104 Fax: (303) 777-1773 rtwallace@aclu-co.org COUNSEL FOR PLAINTIFFS CERTIFICATE OF SERVICE I hereby certify that on November 29, 2012 I electronically filed the foregoing PLAINTIFFS RESPONSE AND OPPOSITION TO DEFENDANTS MOTION FOR CONTINUANCE OF HEARING AND EXTENSION OF TIME [DOC. 9] with the Clerk of Court using the CM/ECF system which will send notification to the following individuals: Christopher J. Melcher: cmelcher@springsgov.com City Attorney/Chief Legal Officer Colorado Springs City Attorneys Office P. O. Box 1575, 30 S. Nevada Ave., Suite 501 Colorado Springs, Colorado 80901-1575 Telephone: (719) 385-5909 Facsimile: (719) 385-5535

Anne H. Turner: aturner@springsgov.com Senior Attorney Colorado Springs City Attorneys Office P. O. Box 1575, 30 S. Nevada Ave., Suite 501 Colorado Springs, Colorado 80901-1575 Telephone: (719) 385-5909 Facsimile: (719) 385-5535 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF COLORADO s/ Sara J. Rich ___________________________ Sara J. Rich Staff Attorney