City Attorney Chris Melcher knew he might have to defend a no-solicitation ordinance in court, but he was surprised by how swiftly the American Civil Liberties Union filed its lawsuit.
“I understand it was just two hours after the City Council voted,” Melcher said.
On Nov. 27, Colorado Springs City Council approved a no-solicitation ordinance for 12 square blocks downtown. The ordinance prohibits all forms of solicitation between Cascade and Nevada avenues on the west and east and between Boulder and Cucharras streets on the north and south. It also prohibits solicitation within 20 feet of a business entrance.
The ACLU’s quick action was particularly striking, Melcher said, given that he had been trying to get together with the ACLU. Melcher said he wanted to discuss issues in the law that might have been addressed before the final vote or that could have been ironed out without a lawsuit.
“I’d hoped they could talk with us to see if we could find some common ground,” Melcher said. “But they refused.”
Mark Silverstein, legal director for the Colorado ACLU, said he hadn’t heard from Melcher for several months.
Melcher sent him a draft of the originally proposed ordinance in the spring, and Silverstein sent some comments back to Melcher. City Council subsequently put off discussions about the ordinance for several months following the Waldo Canyon fire.
“I never heard from him again after that,” Silverstein said.
Silverstein said Melcher reached out to the ACLU before Thanksgiving. But the city attorney talked with a volunteer in Colorado Springs who told him to call Silverstein, who lives in Denver but is paid staff and legal counsel for the local ACLU chapter.
“Melcher never called,” Silverstein said.
Denver Federal District Court Judge Marsha Krieger denied the ACLU’s request for a temporary restraining order in a hearing Monday. The order would have kept the city from enacting the ordinance as initially scheduled on Dec. 2. But the city voluntarily postponed the enactment date of the ordinance to Dec. 19.
The Court will make a decision Dec. 13 regarding the ACLU’s request for an injunction and will likely hear arguments about the ordinance’s constitutionality in early 2013.
“The intent of the ordinance is to help the downtown community,” Melcher said. “It’s not only for businesses, but also for residents.”
The ordinance received broad support from downtown community members.
“We remain confident the Court will carefully consider our arguments,” Melcher said.
He said he knew all along that drafting a no-solicitation ordinance could stir legal controversy, which is why he said he and his staff worked to draft legislation as narrowly defined as possible.
Silverstein said it wasn’t narrow enough and isn’t content-neutral, which is one of the primary measures of constitutionality. He noted that the ordinance will allow someone to hold a sign saying “re-elect the mayor.” But the same size sign would be illegal if it asked readers to donate to the fight against breast cancer.
Melcher says there are similar laws in other cities like Berkley, Calif.; Minneapolis and Mobile, Ala. And the language in the ordinance that Council passed is almost identical to a law prohibiting solicitation on a public beach in Ft. Lauderdale, Fla., which courts upheld as constitutional.
Silverstein said one difference between the lawsuit in Florida and this one is that both parties agreed in Florida that the ordinance was content-neutral. That’s not the case here.
Melcher said he and his staff are prepared to defend the ordinance and knew they might have to do it. He was clear with Council throughout the process that it was a possibility, and that’s why they were careful to draft an ordinance they believe will hold up to legal scrutiny.
He said he believes his office can handle the work in-house, but might consult with some First Amendment specialists if needed.