Landow v. City of Fort Collins

Filing 33

ORDER: Defendant's 20 Motion for Judicial Recusal is DENIED. A Hearing on the 2 Motion for a Preliminary Injunction is RESET to 3/13/2015 at 01:00 PM in Courtroom A 801 before Judge William J. Martinez. By Judge William J. Martinez on 3/9/2015.(alowe)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 15-cv-0281-WJM-KMT
ABBY LANDOW,
JEFFREY ALAN,
SUSAN WYMER,
LAWRENCE BEALL,
GREENPEACE INC., and
NANCY YORK,
Plaintiffs,
v.
CITY OF FORT COLLINS,
Defendant.

ORDER

This matter is before the Court on Plaintiffs’ Motion for Preliminary Injunction
(ECF No. 2) (the “Motion”), Defendant’s Motion for Judicial Recusal (ECF No. 20) (the
“Recusal Motion”), and Defendant’s Notice of Repeal of Contested Portions of
Ordinance No. 70, 1995 (ECF No. 28) (the “Notice”). The Court has reviewed the
Parties’ respective submissions in regards to these matters, and ORDERS as follows:
Judicial Recusal
The Court concludes that given the facts and claims in this litigation, as well as
the scope of the undersigned’s prior participation in the Legal Panel of the ACLU of
Colorado, the undersigned’s recusal in this matter is not mandatory under 28 U.S.C.

§ 455(a) (“Section 455(a)”). In addition, the Court further concludes that under the
controlling case law construing Section 455(a), exercising its discretion to remain in this
case would not run afoul of either Section 455(a) or the Code of Conduct for United
States Judges. An order more specifically detailing the Court’s reasons and bases for
its decision to deny the Recusal Motion will be issued separately.
Plaintiff’s Motion for Preliminary Injunction
In its Order dated February 25, 2015 (ECF No. 22), the Court advised the Parties
that in the event it were to deny the Recusal Motion, it would promptly reset the hearing
on the Motion, which was vacated in said Order. On February 27, 2015, however, the
Defendant filed its Notice, advising the Court of the emergency action of Defendant’s
City Council to repeal the contested portions of Ordinance No. 70, 1995 (the
“Ordinance”), the municipal code provisions which are at heart of this litigation. In both
the Notice and Defendant’s Reply in Support of the Notice (ECF No. 32) (the “Reply”),
Defendant argues that as result of the emergency repeal of the contested portions of
the Ordinance, Plaintiffs’ Motion for Preliminary Injunction is moot, and that a hearing
on the Motion is no longer necessary. Notice at 4, ¶ 14; Reply at 3-8.
In their Response to the Notice (ECF No. 30) (the “Response”), Plaintif fs argue
that their Motion has not been mooted by the emergency repeal of the Ordinance, and
that the Court should go forward with a hearing on the Motion. Plaintiffs argue that
there still exists a live controversy as to Plaintiffs’ request for preliminary injunctive
relief. Response at 2. Plaintiffs take the position that whereas they initially sought to

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prohibit the City from enforcing the contested provisions of the ordinance, they now
seek to prohibit the City from reenacting the repealed provisions of the Ordinance. Id.
Additionally, Plaintiffs argue that the repeal of the challenged portions of the Ordinance
has no effect on their original request that the Court enjoin Defendant from continuing
to allegedly target passive solicitors whose conduct never violated these provisions in
the first instance. Id.
At this early stage of the proceedings, and without further development of the
record, the Court is unable to definitively conclude that Defendant’s repeal of the
challenged provisions of the Ordinance has in fact mooted the Motion. As a
consequence, the Court will reset the Motion for a prompt hearing.
CONCLUSION
For the foregoing reasons, the Court ORDERS as follows:
1.

Defendant’s Recusal Motion (ECF No. 20) is DENIED; an Order more fully

detailing the Court’s reasons for its decision on the Recusal Motion with issue
separately;
2.

A Hearing on the Motion for a Preliminary Injunction (ECF No. 2) is

RESET to March 13, 2015 at 1:00 p.m. in Courtroom A801. The Court will receive
evidence (if any there be) and hear oral argument in support of and in opposition to the
Motion at said Hearing; and
3.

The Parties shall familiarize themselves with the undersigned’s Revised

Practice Standards, in general, and as they relate to the Court’s expectations and

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requirements with regard to evidentiary hearings, and with particular emphasis on WJM
Revised Practice Standard V.F.1, which requires the parties to meet and confer
regarding the proposed exhibits and, to the maximum extent possible, stipulate to the
authenticity and admissibility thereof.
Dated this 9th day of March, 2015.
BY THE COURT:

William J. Martínez
United States District Judge

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