Judge chides lawyers over gabby motion in case against city of Aspen | AspenTimes.com

Judge chides lawyers over gabby motion in case against city of Aspen

To paraphrase the order of a federal judge presiding over a lawsuit against the city of Aspen, less is more.

Attorneys representing two Aspen retailers in their suit against the city were the recipients Thursday of blistering remarks from U.S. District Judge R. Brooke Jackson, who cast skepticism on their case against the city because of its voluminous length.

"If anything, it makes me wonder whether you really do have a good, clear legal argument," the judge wrote.

Jackson's order was in response to the plaintiffs' request seeking permission to file a 44-page brief for a preliminary injunction to stop the city from enforcing two ordinances they claim are unconstitutional. Two of the judges who have handled the case have a 15-page limitation on motions.

"Plaintiffs beg the court's indulgence in reviewing this relatively lengthy brief — an oxymoronic description if ever there was one," said the Oct. 20-dated motion. "Plaintiffs have alleged a number of sophisticated constitutional arguments and there is simply a lot of ground to cover here."

The motion also noted, "Plaintiffs were aware that the brief was unusually lengthy, but the number and sophistication of the constitutional arguments warranted a thorough discussion of those complex issues."

The motion for the injunction was filed Oct. 13, before the case was assigned to Senior Judge Wiley Daniel on Oct. 18. After learning that Daniel has a 15-page limit for briefs, the plaintiffs filed the motion to allow a brief nearly three times the restriction. The case was transferred Oct. 24 to Jackson, who has the same page-limitation policy as Daniel's.

While Jackson granted the motion for the loquacious brief, his order said he did so "because you filed your 44-page motion before the case was assigned to a judge whose practice standards, like mine, limit such motions and briefs to 15 pages; and because it would be a waste of your client's resources to require that you edit it down to 15 pages at this point. But please understand many, many lawyers believe their issues are so important and difficult that more pages are needed. What they don't realize or won't accept is that judges do not agree. With the volume of cases and motions presented to this court, I frankly do not have the time and perhaps not the patience to wade through 44-page briefs. If you can't explain your position and provide citations to the key authorities in 15 pages, then in my view the problem is yours. A longer brief is not a more persuasive brief, either in general or in this case. If anything, it makes me wonder whether you really do have a good, clear legal argument."

The next step in the case is to set a scheduling conference for future proceedings.

The lawsuit and injunction request by Kristals Cosmetics Aspen and Adore, which are under the same ownership, allege the city has quelled their rights to free speech. The city did so, the suit claims, by not allowing the beauty boutiques' employees to hand out free samples to passersby in the Hyman Avenue pedestrian mall and on East Cooper Avenue.

Kristals and Adore are respectively located at 525 E. Cooper Ave. and 430 E. Hyman Ave.

The city, responding to complaints by at least one business and a visitor, gave written warnings to the two stores in August. The city prohibits retailers — with the exception of restaurants, provided they have an agreement with the city — from pitching products or having sales conversation in its right of ways, including those on the downtown sidewalks and malls.

Both stores closed in mid-September, according to the suit, because some of their employees feared the city would jail them for doing their jobs.

The lawsuit goes into lengthy details about why the city's codes are unconstitutional and why they should be abolished. It also claims that employees who handed out free samples to passersby were not soliciting business but were doing so "for the benefit of the public or to educate the public that products exist which would improve their lives, without specifically advertising for plaintiffs' stores."

The lawsuit was filed by The Contiguglia Law Firm PC in Denver and Florida attorneys Daniel Aaronson and Gary Edinger.

rcarroll@aspentimes.com