Even as the Chair of the Democratic Party of Denver, Ed Hall, undemocratically bestowed Williams with the “Democrat of the Year” title, O’Connor and fellow activists continued to challenge Williams in and out of court.
On October 28th, 2014, Senior Judge Richard P. Matsch held a hearing in response to Representative Angela Williams’ motion for summary judgement. During the hearing, Judge Matsch stated, “It’s an important case; I think the First Amendment has stood very fairly in this courtroom in the past.” On November 17th, Judge Matsch issued an order granting summary judgement in Williams’ favor, stating in part,
O’Connor has failed to show a “real nexus” between Rep. Williams’ conduct in seeking,
obtaining and enforcing the civil protection order and her “badge” of state authority as an elected official. Assuming that Rep. Williams had a retaliatory motive to seek the protection order, there is no liability under 42 U.S.C. § 1983 because there was no state action.
On February 9th, 2015, O’Connor filed in the United States Court of Appeals for the Tenth Circuit. The summary of concerns with the ruling were presented under the section “ISSUE PRESENTED FOR REVIEW“:
Whether the district court erred in concluding that Rep. Williams, an elected official, did not act under color of state law when she used her official status of elected State Representative to cause police to eject Mr. O’Connor from a public meeting, and when she commenced judicial proceedings against him in order to silence his dissent and protest, despite the existence in the record of genuine disputes over material facts, and where the court relied only on inadmissible hearsay.
Under the “STATEMENT OF THE CASE“, the appeal continues:
This is an action that goes to the heart of the United States Constitution – a citizen’s right to engage in uncensored, unfettered political speech without fear of retaliation by powerful government officials who have the mechanisms of law enforcement and the judicial system at their disposal.
In the “SUMMARY OF THE ARGUMENT” section, the basis for the appeal is outlined. Some of the highlights follow:
The factual record in this matter is wholly undeveloped (which, alone, precludes a proper determination of the color of law issue), and it is clear that there are genuine disputes of material fact as to whether Rep. Williams acted under color of law, pursuant to 42 U.S.C. § 1983.
With these critical facts in dispute, and many more left undiscovered or undeveloped, the district court could not have fairly made the informed analysis necessary to determine whether Rep. Williams actually acted under color of law. This substantive error requires reversal.
The district court also erred in basing its summary judgment order solely on inadmissible hearsay evidence, while also prohibiting all discovery and, thus, preventing Mr. O’Connor from developing the factual record necessary to support
his opposition to Rep. Williams’s summary judgment motion. This procedural error also warrants reversal.
In the “ARGUMENTS” section, the appeal highlights follow:
Summary judgment is appropriate only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”
Notably, summary judgment may not be granted if the record contains disputes over facts that might affect the outcome of the suit, as the record here contains. Additionally, summary judgment may not be granted based solely on inadmissible evidence, as the district court did here.
The appeal goes on to respond to Judge Matsch’s claim that O’Connor failed to show a “real nexus” (see above), stating Representative Williams
did more than merely seek and obtain the civil protective order against Mr. O’Connor. She abused the authority she possessed by virtue of her position as a state representative in her efforts to silence him. This is, by definition, conduct pursued under color of law. At minimum, there are genuine disputes of material fact that, if taken in the light most favorable to Mr. O’Connor (as this Court must do here), would establish that Rep. Williams acted under color of law…(Williams) used her authority as a public figure to, effectively, ensure a personal security detail at her public meetings and in her neighborhood. A private citizen would be hard-pressed to gain that high of a degree of “police protection and police assistance” in serving and enforcing an ordinary civil protective order, particularly under these facts.
The district court also erred procedurally on a highly particularized, fact-intensive legal question, by prohibiting all discovery and issuing summary judgment based only on inadmissible hearsay evidence. This error alone warrants a reversal and remand for further proceedings…
While it is true that “[t]he nonmoving party may not rest upon ‘the mere allegations or denials of [his] pleading,””(1986)), the district court permitted Mr. O’Connor no opportunity to conduct discovery to gather evidence to support his allegations or refute Rep. Williams’s, despite his insistence that even limited discovery be allowed. Nor did the district court provide an opportunity to test the truthfulness of Rep. Williams’s assertions, or to subject her to the crucible of cross-examination to flesh out the substance of her testimony. Thus, reversing and remanding this case is the appropriate remedy so that the factual record may be fully developed and the court may make an informed decision premised on a complete and thorough analysis.
Representative Williams is expected to file a response in the coming few weeks, and O’Connor is expected a reply some few weeks after that. The court will then set a time to hear 15 minutes of oral argument from each side, after which they will issue their written opinion.