In a December 19 decision, 11th District Court Magistrate Judge Scott T. Varhola issued a split decision regarding civil action No. 19-cv-01301-CMA-STV, a case involving Chaffee County government and resident Dr. Alison Brown. The decision denied Chaffee County’s motion to dismiss Dr. Alison Brown’s 14th Amendment constitutional claim against the Chaffee Board of County Commissioners, while affirmatively granting the motion to “dismiss with prejudice” all claims against the Chaffee County Board of Review and defendants Jon Roorda and Dan Swallow in their official capacities as county staff.
The decision noted that it doubted that oral arguments would significantly assist in the deposition of the motion. The 24-page decision, appears to be a partial setback for the county, which has continued its attempts to drag out the process stemming from Brown’s objection to the county’s denial of her Headwater Hounds kennel permit application, and the county’s actions surrounding that decision.
The 14th Amendment to the U.S. Constitution was ratified in 1868. It did two things. It granted citizenship to all persons born or naturalized in the United States, including former slaves—and it guarantees that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The constitutional aspects of this case came about when the county changed the rules relating to dog kennels three years after Brown had already established her American foxhound kennels on her property at 11600 Antelope Rd. Brown was in the process of construction on a home on the property when neighbors on one side of her property began to complain about her dogs barking. The county backed their complaints, appearing to ignore the tenets of both the State of Colorado and Chaffee County Right to Farm & Ranch regulations.
Designating her as non-compliant, Chaffee County then used her “non-compliance” as a reason to deny Brown an occupancy permit for the new home she had legally built on the property. That staff decision rendered Brown homeless at Christmas time, 2017.
After denying her a home occupancy permit, the county proceeded to deny her a temporary permit to sleep in her camper on her property while she tried to resolve the impasse, aggravating her homeless situation. The staff decision was documented during the original court case testimony, in which Planning Director Dan Swallow said that he denied Brown’s certificate of occupancy because he considered her to be “defiant”. Brown appealed the decision to the Board of Review, which backed the county’s decision.
The Magistrate recommended “dismissal with prejudice” of the claims against Chaffee County Board of Review and county staff Dan Swallow and Jon Roorda in their official capacities, including the equal protection claim. The court went on to upheld the county’s request to seek dismissal of the “the equal protection claim involving Chaffee County Commissioners, “dismissed without prejudice”. This does not mean the county is in the clear. It means that District Court is allowing for the possibility that investigation might uncover more facts to support Brown’s suit.
The court denied Chaffee County’s request to dismiss Brown’s due process claim against the Chaffee Board of County Commissioners, upholding the issue which lies at the heart of her court case. This could generate a monetary damages award.
“I am pleased that the District Court recommended denial of Chaffee County’s motion to dismiss my 14th Amendment constitutional claim against the Board of County Commissioners,” said Brown. “I hope that this means that the continued delaying tactics by the county will cease, which have caused unneeded expense to Chaffee citizens, and we can move forward expeditiously to trial and judgement on my claims.
The county appears to be relying upon a governance insurance policy to cover any claims against it. But as the court has denied the portion of the lawsuit the policy would appear to more fully cover, the county might hold more financial liability than has been assumed.
Based on a statistical analysis of constitutional cases, it would appear that a vast majority of constitutional rights cases in the U.S. never go to trial. Only around four percent of constitutional cases actually get to trial, with 96 percent either negotiated, dropped or settled out of court.
Either party may file written objections to the ruling within 14 days of service of the Magistrate’s recommendation. The county has not indicated whether or not it will appeal the decision.
Editor’s note: Alison Brown is a major stockholder in Ark Valley Voice. Based on the operating agreement in place, she has no editorial control over content.