City loses appeal, so loitering remains legal in Salida

Brief by Central Staff

Salida politics – March 1998 – Colorado Central Magazine

City loses appeal, so loitering remains legal in Salida

Salida’s controversial loitering law, enacted last summer, may be consigned to the dustbin of history. Two local judges have found it unconstitutional, and the city council — five of its six members took office in January — has started a repeal process.

The legal challenges began in municipal court on Sept. 3, when two Salida men charged with loitering — William Bradford Spence and Josh Edelstein — had their attorneys (Ernest Màrquez of Salida and Mark Silverstein of the Denver ACLU office) argue that the statute violated the state and federal constitutions.

Municipal Judge Bill Alderton agreed, and Police Chief Darwin Hibbs said he would suspend enforcement of the loitering law for the duration. Then-mayor Nancy Sanger and the city council had already agreed to appeal if the city lost, so City Attorney Al Sulzenfuss filed papers right away.

Normally, an appeal from municipal court goes to county court, but since Alderton is also the county judge, this appeal went to district court and Judge Ken Plotz.

On Feb. 5, Plotz generally upheld Alderton’s ruling. The main difference is that Alderton had, among other things, addressed a portion of the ordinance concerning loitering within 1,000 feet of a school when in session, and found that part, like the rest of the ordinance, repugnant to the constitution.

But the school portion had never been brought up at the trial in municipal court, Plotz wrote, and so Alderton could not properly address it in his ruling.

Otherwise, “this Court finds that it is indeed a fundamental right of the citizens of Salida to stand and walk about in public places. Therefore the remaining portion of the judgment and order of the Municipal Court is affirmed.”

We suspect that the ACLU would like the city to appeal Plotz’s ruling, so that the Colorado Supreme Court would rule against the city again, and there would be a statewide standard against loitering laws.

But the city isn’t likely to pursue it. At the Feb. 2 meeting of the city council, Councilor Monica Griesenbeck moved to repeal the ordinance. Her motion passed 5-1 on first reading, with only Councilo Sue Potts opposed.

Potts said she was concerned about loitering near schools, and wondered if that portion of the ordinance could be preserved. Others said that if that was a problem, the city could produce a new ordinance later, but the important thing was to get the old one off the books.

That’s in the pipeline. Griesenbeck also wanted the city to drop the appeal (this was on Feb. 2, and Plotz’s ruling didn’t come until Feb. 5), but that didn’t pass. Mayor Ralph Taylor observed that “Since the issue is in front of a judge now, we might as well find out what he has to say before we act.”

Now that Plotz has ruled, and the repeal process has begun, perhaps the new council will examine some of the other unduly ordinances passed last summer — specifically, the open-container law and the curfew.