Case 1:16-cv-02372-MSK-CBS Document 21 Filed 10/05/16 USDC Colorado Page 1 of 5 Civil Action No. 16-cv-02372-MSK IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO 303 CREATIVE LLC, a limited liability company; and LORIE SMITH, v. Plaintiffs, AUBREY ELENIS, Director of the Colorado Civil Rights Division, in her official capacity; ANTHONY ARAGON, ULYSSES J. CHANEY, MIGUEL MICHAEL RENE ELIAS, CAROL FABRIZIO, HEIDI HESS, RITA LEWIS, and JESSICA POCOCK, as members of the Colorado Civil Rights Commission, in their official capacities, and CYNTHIA H. COFFMAN, Colorado Attorney General, in her official capacity; Defendants. DEFENDANTS UNOPPOSED REQUEST FOR A STATUS CONFERENCE Defendants Aubrey Elenis, Anthony Aragon, Ulysses J. Chaney, Miguel Rene Elias, Carol Fabrizio, Heidi Hess, Rita Lewis, Jessica Pocock, and Cynthia H. Coffman (collectively Defendants ), by and through their undersigned counsel, respectfully request a status conference to discuss the procedural posture of this litigation. In support of this Request, Defendants state as follows: 1. Pursuant to D.C.COLO.LCivR 7.1(a) of the Local Rules of Practice, counsel for Defendants conferred with Plaintiffs counsel on October 4 and 5, 2016, via email. Plaintiffs indicated that they believe the case should proceed according to the usual schedule provided for under the Rules, but they do not oppose
Case 1:16-cv-02372-MSK-CBS Document 21 Filed 10/05/16 USDC Colorado Page 2 of 5 Defendants request for a hearing to discuss the schedule with the Court. 2. On September 20, 2016, Plaintiffs filed their complaint and motion for preliminary injunction. [Doc. Nos. 1 and 6]. On September 28, 2016, Plaintiffs served Defendants with the summons and complaint and preliminary injunction. Plaintiffs did not ask Defendants to waive service. Responses to both the complaint and motion for preliminary injunction are due on or before October 19, 2016. 3. Plaintiffs complaint and motion for preliminary injunction seek to prohibit enforcement of Colorado s Anti-discrimination Act (CADA) as it relates to places of public accommodation and services provided to same-sex couples. [See e.g., Doc. No. 1, 15; Doc No. 7, at p. 1.] Plaintiff Smith owns Plaintiff 303 Creative LLC, and she is a web-site designer who would like to create online wedding websites, but not offer the service to same-sex couples. [Doc. No. 1, 1 and 4]. Plaintiff Smith asks the Court to enjoin Defendants from enforcing CADA, due to her constitutional right to freedom of speech and the free exercise of religion. [See e.g, Doc. No. 1, at pp. 29 and 42; Doc. No. 7, at p. 2]. 4. Pursuant to D.C.COLO.LCivR 3.2, Plaintiffs filed a notice of related case referring to Craig v. Masterpiece Cakeshop. [Doc. No. 5]. A petition for writ of certiorari is pending before the United States Supreme Court in the Craig case, and the Supreme Court ordered the Colorado Civil Rights Commission to file a response to the petition on or before November 19, 2016. 5. Defendants intend to assert various arguments in a motion to dismiss that may dispose of the matter prior to taking further action. Specifically, well
Case 1:16-cv-02372-MSK-CBS Document 21 Filed 10/05/16 USDC Colorado Page 3 of 5 established principals of comity dictate that a federal court should abstain from interfering with state judicial and administrative proceedings or conducting duplicative proceedings. See Younger v. Harris, 401 U.S. 37 (1971) and Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976). Further, federal courts are generally prohibited from issuing advisory opinions, which any ruling in this case would be until the Supreme Court speaks on the matter. See Flast v. Cohen, 392 U.S. 83 (1968). 6. Additionally, Plaintiffs are asking this Court to address an injury which may occur if Plaintiffs violate the CADA sometime in the future and if the Colorado Civil Rights Commission, or any aggrieved private individual not named as a defendant here, brings an administrative or state civil action to address that violation. The speculative nature of Plaintiffs injury raises issues of both standing and ripeness. See Clapper v. Amnesty Intern. USA, 133 S. Ct. 1138 (2013); Blanchete v. Connecticut General Ins. Corps., 419 U.S. 102 (1974). 7. It is axiomatic that a court must satisfy itself as to its jurisdiction before considering a request for a preliminary injunction. Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1126 (10th Cir. 2013). Because a federal trial court is one of limited jurisdiction under U.S. Const. art. III, 2, the matters raised herein (abstention, duplicative proceedings, advisory opinions, standing, and ripeness) concern this Court s subject matter jurisdiction. 8. Defendants request a status conference with the Court to determine the best way to proceed in responding to Plaintiffs complaint and motion for preliminary injunction in light of the fact that Defendants intend to file a motion to
Case 1:16-cv-02372-MSK-CBS Document 21 Filed 10/05/16 USDC Colorado Page 4 of 5 dismiss based on the principles identified above. WHEREFORE, Defendants respectfully request this Court enter an Order granting a status conference to discuss the posture of this matter in order to secure the just, speedy, and inexpensive determination of this action. Respectfully submitted this 5th day of October, 2016. s/ Jack D. Patten, III VINCENT E. MORSCHER JACK D. PATTEN, III Deputy Attorney General Assistant Attorney General Civil Litigation and Employment Law Section Employment/Personnel & Civil Rights Unit Attorneys for Defendants 1300 Broadway, 10 th floor Denver, CO 80203 Telephone: (720) 508-6588 Fax: (720) 508-6032 E-Mail: vincent.morscher@coag.gov E-Mail: jack.patten@coag.gov *Counsel of Record
Case 1:16-cv-02372-MSK-CBS Document 21 Filed 10/05/16 USDC Colorado Page 5 of 5 CERTIFICATE OF SERVICE I certify that I served the foregoing DEFENDANTS UNOPPOSED REQUEST FOR A STATUS CONFERENCE upon all parties herein by e-filing with the CM/ECF system maintained by the court or by depositing copies of same in the United States mail, first-class postage prepaid, at Denver, Colorado, this 5th day of October, 2016, addressed as follows: Jeremy David Tedesco Jonathan Andrew Scruggs Samuel David Green Katherine Leone Anderson Alliance Defending Freedom-Scottsdale 15100 North 90th St., Suite 165 Scottsdale, AZ 85260 (480) 444-0020 Fax: (480)444-0028 Email:jtedesco@ADFlegal.org jscruggs@adflegal.org sgreen@adflegal.org kanderson@adflegal.org Michael L. Francisco MRD Law 3301 West Clyde Place Denver, CO 80211 (303) 325-7843 Fax: (303) 723-8679 Email: MLF@mrdlaw.com Rory Thomas Gray David Andrew Cortman Alliance Defending Freedom- Lawrenceville 1000 Hurricane Shoals Rd., NE Suite D-1100 Lawrenceville, GA 30043 (770) 339-0774 Fax: (770) 339-6744 Email: rgray@adflegal.org dcortman@alliancedefendingfreedom.org s/ Jack D. Patten, III