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Editor’s Note: This is Part II of a three-part series examining the case slowly wending its way through federal court involving Dr. Alison Brown and Chaffee County regarding her use of her rural-zoned property at 11600 Antelope Rd. Part I can be viewed here: Brown v Chaffee County Part I

Filing a Motion to Dismiss at the beginning of a case, which Chaffee County has done, is a common defense tactic and relatively routine, particularly for government defendants. Its goal is to try to eliminate at least some of a plaintiff’s claims. Usually, defendants have little to lose by making such a motion. If the motion is denied, the issues can be raised again at the end of discovery or at the end of the trial. A Motion to Dismiss tests only whether the allegations of a complaint, if proven, would entitle a plaintiff to relief under the law. No evidence is considered at this point.

Lady Justice originates from the personification of Justice in Ancient Rome. With or without her blindfold, she is a symbol to all on how the court system tries to be fair and grant everyone a fair trial beyond prejudice and bias.

In their Motion to Dismiss, the county defendants make several arguments. One is seeking dismissal of the entire case. Another is seeking dismissal of the claim that Brown was deprived of property without due process of law. Still, another seeking to dismiss Brown’s equal protection claim, and others seeking dismissal of various defendants from the case, namely, the county, its agencies and its officials.

This standard defense tactic, even if unsuccessful, is often worth filing. It forces a plaintiff to lay out the law and facts on which she relies while giving the defense lawyers time to study the facts and decide on a strategy before having to admit or deny the allegations in their “answer.”

To dismiss the entire case, the county argues that Brown “already litigated” her claims under 42 U.S.C. §1983 in the enforcement case brought by the county against her. This argument takes advantage of the great reluctance of federal courts to step on the toes of state courts.

But Magistrate Hunter’s Decision, in that case, states that constitutional issues were neither raised nor considered. Instead, the county seems to be arguing, perhaps prematurely, that Brown should have litigated her federal constitutional claim in that case. The defense that she should have litigated earlier usually must first be affirmatively made in a defendant’s answer, and considered only after they submit evidence to support it. Nonetheless, Brown has countered, citing a Colorado case for the proposition that, under Colorado law, she is not required to assert her federal claim in a county’s enforcement proceeding. (See case.)

The county also argues that Brown’s claim of being deprived of a property right without due process of law should be dismissed. This is important to the county since it attacks a claim that might not be covered by insurance. The county says that Brown had no vested property right that could have been denied, citing a case against Arapahoe County that was dismissed for that reason. But Brown cites the same case, pointing out that her facts satisfy the test that the plaintiff, in that case, had failed.

That case stated that one has a vested right to a use of land where there exists either “(1) a statutory right under the Colorado Vested Property Rights Act;” or “(2) a common law right that vests in a particular land use after a building permit has been issued, and a landowner acts in reliance on it;” or “(3) a common law right that vests in land use based on a landowner’s substantial actions taken in reliance, to her detriment, on representations and affirmative actions by the government.” Brown argues that the facts that she alleges compare with those in a case against Boulder County. The plaintiff, in that case, won.

The county further argues that Brown’s claim of having been denied equal protection of the law should be dismissed. If the county succeeds in having Brown’s equal protection claim dismissed, but not the claim for denial of her property right without due process of law, their motion could backfire. They could succeed in eliminating a claim that is probably covered by insurance, leaving the one claim that might not be covered.

Dismissing the equal protection claim could also lead to an appeal to the 10th Circuit Court of Appeals, where there is a better than average chance that the dismissal would be reversed. This is because the equal protection claim is based on a fairly new theory that the Supreme Court recognized only 20 years ago. The right of a single individual, rather than a class of several persons, to recover for equal protection violations — the “Class of One” situation (see case).

Unlike due process claims, few fact situations have been adjudicated under the “class-of-one” theory. Many other tests have been suggested that courts have not yet considered (see article). Reversal of the dismissal of one, but not all, of the claims could give Brown a chance for a second trial, whether or not she wins the first one. So this case might be an exception to the general rule that defendants have nothing to lose by filing a motion to dismiss.

The county also wants its officials, Swallow and Roorda, dismissed as defendants. They cite no case law for why that should be done and only argue that their presence is redundant. In cases seeking damages under 42 USC §1983, officials or other individuals “persons” who are responsible for the alleged wrongful acts are historically the primary parties that are sued. In this case, damage claims under §1983 may be made against Defendants Swallow and Roorda, and perhaps County Attorney Jennie Davis. (See case.) Then, if the evidence establishes that they acted according to county policy, the county can be liable. (See case 1 and case 2). Otherwise, the individual defendants could be personally liable. (See case.)

Much of the evidence in this case will be from records of court or administrative proceedings or other documents, much of which is undisputed. So there is a good chance that the legality of the county’s conduct, its liability to Brown, and her right to resume operations will be determined by the judge, leaving only the amount of the damages to be decided by a jury.

That is what transpired when certain neighbors, sued Brown for nuisance and who was counter-sued by Brown for defamation. On that counterclaim, the judge ruled that those neighbors had committed defamation per se against Brown, leaving it for the jury to determine only the amount of the damages to award Brown. That jury awarded her $550,000.

What this case might ultimately mean to Chaffee County and its property owners, and to Brown in the future will be discussed in part III of this article.

Editor’s note: The hearing on the motion to dismiss began Thursday morning Oct. 17 and runs through Friday morning, Oct. 18.

Alison Brown is an investor in Ark Valley Voice.