DEFENDANT KENNETH SCOTT’S RENEWED MOTION TO DISMISS · 2014-11-24 · in the united states district court . for the district of colorado . civil action no. 11-cv-01430-pab-meh .

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 11-CV-01430-PAB-MEH UNITED STATES OF AMERICA, Plaintiff, v. KENNETH SCOTT and JO ANN SCOTT, Defendants

DEFENDANT KENNETH SCOTT’S RENEWED MOTION TO DISMISS

Under Rule 12(b)(6),1 Defendant Kenneth Scott (“Ken Scott”)2

I. FACTUAL AND PROCEDURAL BACKGROUND

, through undersigned

counsel, moves to dismiss the Complaint, respectfully submitting as follows:

Although the Complaint purports to be for civil remedies,3 the FACE Act4

1 This motion does not require conferral under 7.1(A), D.C.Colo.L.CivR; “Rule” in this motion refers to the Federal Rules of Civil Procedure.

is contained in

Title 18 Crimes and Criminal Procedure of the United States Code. In this case, the United States

has chosen to file a civil action, yet it seeks a draconian $10,000.00 fine against Ken Scott and a

broadly worded injunction to prohibit unspecified future violations of FACE and local laws, all

while withholding names of the accusers of his alleged offenses. The action is based on ten (10)

2 This motion conforms to the 15 page length for motions to dismiss, even though affidavits are attached hereto, converting this motion to one for motion for summary judgment. Judge Brimmer’s Prac. Stnd. § III, ¶ A 3 Prayer for Relief, ¶92 citing to §248(c)(2)(B) 4 18 U.S.C. §248

Case 1:11-cv-01430-PAB-MEH Document 59 Filed 08/17/11 USDC Colorado Page 1 of 16

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alleged incidents in Denver, Colorado which happened over a two year period between August

15, 2009 and December 8, 2010. Despite the two year lag since the first alleged offense, the

United States also seeks a preliminary injunction against Ken Scott (the “PI Motion”). By

agreement of the parties, the PI Motion has not yet been set for hearing.5

In addition, the text of the Complaint seeks an injunction against other people,

6

The claims against Ken Scott

who are

not named as defendants in the caption as required by Rule 10(a), nor served with process under

Rule 4.

7 all arise from acts described in the Complaint as taking

place “on the sidewalk and in the driveway outside PPRM”8 which opens onto Pontiac Street.9

Generally, the United States’ has built its case on a claim that Ken Scott violated the FACE Act

whenever a driver who had voluntarily stopped to take his materials caused another driver to

pass to the side or wait until the conversation finished. The United States has chosen not to sue

the drivers of the stopped cars, but seeks to hold Mr. Scott vicariously liable for their actions.

Importantly for this 12 (b)(6) Motion, the government freely admits that Ken Scott was engaged

in expressive conduct by describing his conduct as including “talking” and “carrying a sign or

placard.”10

5 See agreement in Ken Scott’s Renewed Motion for Extension of Time, filed 6/23/11 [Doc # 20].

6 Complaint, Prayer for Relief ¶ 1, seeking to enjoin defendants and “their representatives, agents, employees and others acting in concert or participation with them . . . or aiding, abetting, directing, or inciting others . . .”; see also, plaintiff’s Motion for Preliminary Injunctive Relief, the “Wherefore” clause 7 Complaint, ¶ 2 8 Complaint, ¶ 13 9 Complaint, ¶ 12 10 ¶18, ¶33, ¶38, ¶39, ¶45, ¶46, ¶59,¶64, ¶71, ¶73,¶13, ¶21, ¶25, ¶29, ¶30, ¶39, ¶63, ¶70, ¶ 19,alleging the use of descriptive words, and also ¶ 19 - allegedly using religious words.


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Affidavits are attached by Ken Scott and long-time Colorado surveyor, Randy Wilmore

of Wilmore & Co. Land Surveying as Exhibits A and B. Ken Scott was at all times described by

the Complaint engaged in “expressive conduct” which was “occurring outside a facility.”11

II. SUMMARY

Moreover, Ken Scott’s expressive conduct was at all times within a public right of way, where he

has a right to do what he does under the First Amendment and which Congress may not prohibit:

“Congress shall make no law. . . .” (emphasis added).

The Complaint must be dismissed because the FACE Act does not apply to expressive

conduct in the form of peaceful picketing, demonstrating and free speech occurring outside a

facility. Nor does the FACE Act pre-empt state and local law.

Moreover, the FACE Act is defective on its face in making civil and criminal offenses

out the same acts. In doing so, the Congress purports to give the federal government a lenient

statutory path to circumvent the more stringent protections for citizens under the Bill of Rights.

In this same vein, the Complaint fails to state the names of the alleged victims whose

identities under §248(a) (1) are an essential element of the claim for relief, because they must be

persons “obtaining or providing reproductive health services.” To pursue either a civil or a penal

offense, this Complaint insufficiently states the essential element of a FACE violation.

11 See § 248(d)(2)


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III. STANDARD OF REVIEW

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to "state a claim to relief that is plausible on its face."”12 The issue is not

whether the plaintiff will prevail, but whether the defendant is entitled to evidence in support of

the claims.13 “Rule 12(d) specifically gives the court discretion to accept and consider extrinsic

materials offered in conjunction with a Rule 12(b)(6) motion. However, once the court decides to

accept "matters outside the pleadings," the motion will be treated as one for summary judgment

and disposed of as provided in Rule 56.”14 Reversible error may occur if a district court

considers matters outside pleadings but fails to convert motion to summary judgment motion.15

Under Rule 56(c), a court “shall grant summary judgment if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” A material fact is one that “might affect the outcome of the suit under the governing law.16

While considering the facts and all reasonable inferences in the light most favorable to the

nonmoving party,17

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the Court has an affirmative obligation to prevent factually unsupported

2-12 Moore's Federal Practice - Civil §12.34, citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) ; accord Ashcroft v. Iqbal, 556 U.S. --, 129 S. Ct. 1937, 173 L. Ed. 2d 868, 884 (2009) 13 Id., citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) ; accord Ashcroft v. Iqbal, 556 U.S. --, 129 S. Ct. 1937, 173 L. Ed. 2d 868, 884 (2009) 14 Id., citing Lybrook v. Members of Farmington Mun. Sch. Bd. of Educ., 232 F.3d 1334, 1341-1342 (10th Cir. 2000) (district court has discretion whether to accept or reject attachments to pleadings, and did not abuse its discretion by failing to convert Fed. R. Civ. P. 12(b)(6) motion to summary judgment when there was no showing court had relied on attachments); Prager v. LaFaver, 180 F.3d 1185, 1188-1189 (10th Cir. 1999) (court has discretion to consider extrinsic materials if they are central to claim, but is not required to do so) 15 Id., citing Lowe v. Town of Fairland, Okla., 143 F.3d 1378, 1381 (10th Cir. 1998) 16 Anderson v. Liberty Lobby, Inc., 477 U.S. 232, 248 (1986) 17 Scott v. Harris, 550 U.S. 372, 378 (2007)


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claims and defenses from going to trial.18

1. Statutory Protection for Expressive Conduct Requires Dismissal

IV. ARGUMENT

A. Overview: In §248(d), the FACE Act specifically protects expressive conduct,

peaceful picketing, peaceful demonstration, free speech and free exercise “occurring outside a

facility.” Congress made all of FACE subject to §248(d), not the other way around.

The FACE Act does not authorize this suit for “obstructing” a facility or “forcing a wide

turn” or for being “in the driveway,” because by admitting that Defendant Ken Scott was

engaged in expressive conduct, the government has admitted that the FACE Act does not apply

at all.

Congress provided an abundantly clear exception to the FACE Act, which provides that

FACE shall not be construed: (1) to prohibit any expressive conduct (including peaceful

picketing or other peaceful demonstration); (2) to create new remedies for interference with

activities protected by the . . . the First Amendment . . .regardless of the point of view expressed;

(3) to . . . preempt state and local laws that may provide such penalties or remedies; or (4)

[omitted here]

B. Protected Peaceful Picketing/Demonstration (d)(1) and (d)(2): The government

does in fact seek to prohibit and penalize Defendant Ken Scott from peaceful picketing and

peaceful demonstration, acts carved out from reach by the government. By failing to plead any

acts which were not peaceful in any way, the government has admitted that Ken Scott’s conduct

falls within these exceptions.

18 Drewitt v. Pratt, 999 F. 2d 774, 778-79 (4th Cir. 1993)


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C. ‘New Remedies’ Barred by §248(d)(2): FACE expressly bars new remedies

against activities protected by the free speech or free exercise clauses of the First Amendment to

the Constitution, occurring outside a facility, regardless of the point of view expressed.19

Nevertheless, the Complaint seeks to impose new remedies against Ken Scott for “talking” and

“carrying a sign” in the form of a $10,000.00 penalty, a 25-foot gag zone and injunctions against

generalized violations of statutes.20

The figure of $10,000 and the other remedies sought by the Complaint are ‘new’ and

arbitrary remedies intended to deter and chill First Amendment protected activity, including

pamphleting, described in the attached affidavit of Ken Scott. Moreover, the Complaint attempts

to penalize the defendant’s point of view, evidenced by gratuitous allegations in the Complaint

betraying an anti-religious animus.

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2. Protected Speech in a Public Forum

The government has failed to allege exculpatory information, i.e., that each alleged

violation was within a public right of way.22 The attached affidavits as Exhibit A and B, establish

this fact. In Snyder v. Phelps,23

19 § 248(d)(2)

decided in March of 2011, the United States Supreme Court

struck down a Maryland state court damages award arising out of protests at a Catholic funeral

for an Iraq war soldier. Even though a jury had found the picketing to be outrageous, and that it

violated a tort called intrusion of seclusion, the First Amendment was not overcome. Too great a

danger existed that speech which is entitled to “special protection” by being on matters of public

20 Complaint, Prayer for Relief, ¶¶ 1 and 4 21 Complaint, ¶19 22 See attached affidavits of Defendant Ken Scott and surveyor Randy Wilmore 23 562 U.S. Snyder v. Phelps, 131 S. Ct. 1207, 1211 (2011)


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concern would actually be punished, especially where the protests took place “on public

property, in a peaceful manner, in full compliance with the guidance of public officials.”24

The Complaint in this case does not allege that Ken Scott ever entered upon the property

of PPRM, nor that he engaged in violence or used profanity, nor that he violated local or state

ordinances. His affidavit, Exhibit B, shows he unquestionably speaks out on “matters of public

concern” by the educational and informational materials he offers to anyone interested in

obtaining alternatives to abortion or in learning facts about the natural development of an unborn

child, the harms of abortion to the mother and the child, abortion’s impact on minority

populations, an explanation of Biblical aspects of abortion, and Planned Parenthood’s own

history. Importantly, the arguably “inappropriate or controversial character of a statement is

irrelevant to the question of whether it deals with a matter of public concern.”

25 If scandals

“involving the Catholic clergy” are matters of public concern as was held in Snyder, 26then

scandals involving Planned Parenthood and information on the other subjects that Ken Scott

publicizes are certainly also matters of public concern. In addition, in Snyder, even though a few

signs could have been construed as being personal in nature, i.e. “You’re Going to Hell” and

“God Hates You,” those signs did not change the fact that the overall thrust and dominant theme

of the protesters’ demonstration “spoke to broader public issues.”27

3. The FACE Act is Unconstitutional because its “Civil Penalty” is Penal in Nature without Providing the Constitutional Safeguards Required when Imposing a Criminal Penalty.

24 Id. at 1211,1220 25 Id at 1216, citing Rankin v. McPherson, 483 U.S. 378, 387 (1987) 26 Id. 27 Id.


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A. The Statutory Scheme: The FACE Act provides for both criminal and civil

remedies for violation of those “prohibited activities” enumerated in the statute.28 Section (b) of

the statute addresses criminal penalties, which consist of jail time and/or monetary fines (for

nonviolent physical obstruction, the fine shall be no more than $10,000 for the first offense, and

not more than $25,000 for the second offense).29

Additionally, as in the criminal section, for actions brought by the federal or state

government the court may assess a “civil penalty.”

30

Accordingly, the monetary civil penalty contained in the FACE Act is in effect punitive

and, therefore, is criminal in nature. This distinction has Constitutional dimensions. A person

charged with criminal activity is guaranteed certain protections

31 under the United States

Constitution, notably by the Fifth and Sixth Amendments, whereas a person charged with a civil

violation is deprived of those protections. The U.S. Supreme Court stressed this distinction in

United States v. Ward: 32

The distinction between a civil penalty and a criminal penalty is of some constitutional import. The Self-Incrimination clause of the Fifth Amendment, for example, is expressly limited to “any criminal case.” Similarly, the protections provided by the Sixth Amendment are available only in “criminal prosecutions.” Other constitutional protections, while not explicitly limited to one context or the other, have been so limited by decisions of this court.

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28 18 U.S.C. §248 29 18 U.S.C. §248(b) 30 18 U.S.C. §248(c)(2)(B)(i), (ii) 31 For three constitutional functions of an indictment see 24-607 Moore's Federal Practice -- Criminal Procedure § 607.02, 32 448 U.S. 242 (1980) 33 Id., p. 248 (citations omitted)


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B. Determining Whether a Penalty is Civil or Criminal: The United States

Supreme Court has established a two part test in determining whether a statutory penalty

is civil or criminal in nature: First, whether the legislature, in establishing the penalty,

indicated either expressly or impliedly a preference for one label or the other; and,

second, if the legislature has indicated its intention to establish a civil penalty, whether

the statutory scheme “is so punitive either in purpose or effect as to negate that intention

(emphasis added)”34

In this regard, the Supreme Court in Kennedy v. Mendoza-Martinez articulated the

following criteria to determine whether a statute is punitive in character, as opposed to

regulatory:

Whether the sanction involves an affirmative disability or restraint, whether it has been historically regarded as punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment – retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned.35

However, the Kennedy list of considerations is neither exhaustive nor dispositive, and

may often point in differing directions.36

In Kennedy, the Supreme Court addressed whether a penalty which deprived persons

who evaded the draft of their U.S. citizenship was civil or penal in nature. In reaching its

34 See e.g., United States v. One Assortment of 89 Firearms, 465 U.S. 354, 1105-06 (1984); Ward, 448 U.S. at 248-249; Roach v. The National Transportation Safety Board, 804 F.2d 1147, 1153 (10th Cir. 1986); Duncan v. Norton, 974 F.Supp. 1328, 1332 (D. Colo. 1997) 35 Kennedy, 372 U.S. 144, 168-69 (1963); see also One Assortment of 89 Firearms, 465 U.S. at 365; Ward, 448 U.S. at 248-249, Roach, 804 F.2d at 1153; and Duncan, 974 F.Supp. at 1333 36 Id.


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decision, the Court looked first for conclusive evidence of congressional intent as to the penal

nature of the statute, i.e., was it intended to impose punishment. The Court held the statute to be

unconstitutional as it inflicted “punishment” without a criminal trial, and all the safeguards

guaranteed by the Fifth and Sixth Amendments that are incidental thereto, such as indictment,

notice, confrontation, jury trial, assistance of counsel, and compulsory process of obtaining

witnesses.

A conclusion that FACE’s civil penalty provisions are actually penal laws is supported by

both (a) FACE’s legislative history, indicating Congressional intent to address a perceived

inadequacy of local law enforcement, and (b) application of the criteria set forth in Kennedy.

C. The Legislative History: FACE’s legislative history shows that the act was

passed in response to a perceived increase in crimes against abortion providers and their patients,

and the inadequacy of law enforcement to deal with the problem:

The record before the Committee establishes that state and local law enforcement is inadequate to handle this situation [involving claims of violence] and that Federal legislation is urgently needed.37

In fact, the reports from both the House of Representatives and the Senate are replete

with references to alleged shortcomings of law enforcement:

Further, existing criminal laws at the state and local level have failed to provide the certainty of prosecution, conviction and punishment necessary to deter these activities on a nationwide scale. Moreover, the ability and sometimes the will of many state and local authorities to deal with what are often large-scale, inter-state operations have proven inadequate. 38

State and local law enforcement authorities have failed to effectively address the systemic and nationwide assault that is being waged against health care providers and patients. Enforcement of applicable local laws, such as those against trespass,

37 S. REP. NO. 103-117, at 2 (1993) 38 H.R. REP. NO. 103-306, at 8 (1993)


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vandalism, and assault, has proved inadequate for several reasons. … First, in some localities, local officials have willfully refused to act in response to anti-abortion violence and blockades. … But even where local authorities are willing to conscientiously enforce the applicable State and local laws, they are often unable to do so effectively. …. Local law enforcement authorities are frequently overwhelmed by the sheer numbers of the blockaders. … And the problem does not end with the arrest. For example, over 200 arrests were made after the October 29, 1988, blockade. The City prosecutes all misdemeanors through the city Attorney and his part-time assistant. There were so many defendants that the trials had to be consolidated and held at one time. The only available site large enough was the community center gymnasium, which lacked a certain decorum. … Another problem with reliance on state and local laws is that the penalties for violations of these laws are often so low as to provide little if any deterrent effect. … For all of these reasons, Congress has been urged to enact new Federal legislation not only by victims of the conduct addressed by S. 636, but also by law enforcement authorities … .39

Testimony was presented on the “enormous budgetary and personnel problems for the local police department” caused by abortion protests such as blockades.40

Testimony also was presented about many lesser-known activities around the country that, like the larger orchestrated blockades, place a significant strain on local law enforcement and judicial resources ….41

FACE makes it a federal crime to engage in certain conduct prohibited activities

enumerated in section (a).42

But in this case, the statute is used as the basis for a civil penalty of $10,000.000, which

may be assessed in a civil suit brought by the government for the exact same prohibited activities

to which the criminal penalties apply. Significantly, the Senate report expressly states that the

civil penalty was intended as an additional “deterrent:”

Clearly, the FACE Act was intended as a criminal statute, to punish

and deter.

39 S. REP. NO. 103-117, at 15-16 (1993) 40 H.R. REP. NO. 103-306, at 4 (1993) 41 H.R. REP. NO. 103-306, at 3 (1993) 42 18 U.S.C. §248(a), (b)


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Finally, as an additional deterrent, the law authorizes the award of … civil penalties (in cases brought by the Attorney General of the United States or of a State)43

(emphasis added).

Thus, the civil penalties are simply another means by which the federal government can

punish and deter criminal behavior without having to engage in a criminal arrest and prosecution,

thereby saving the time and costs associated with respecting the Bill of Rights.

D. Application of the Kennedy Factors In addition to the legislative history discussed

above, an analysis of the factors articulated by the Kennedy Court also shows that the civil

penalty imposed by the FACE Act is, in purpose and effect, penal. Again, those factors are as

follows: (1) Whether the sanction involves an affirmative disability or restraint; (2) Whether it

has been historically regarded as punishment; (3) Whether it comes into play only on a finding

of scienter; (4) Whether its operation will promote the traditional aims of punishment –

retribution and deterrence; (5) Whether the behavior to which it applies is already a crime; (6)

Whether an alternative purpose to which it may rationally be connected is assignable for it, and

whether it appears excessive in relation to the alternative purpose assigned.

Factor 1 weighs heavily in Mr. Scott’s favor, as the civil penalties sought in this case

would restrict the exercise of his First Amendment rights, and impose a draconian fine of

$10,000.00. As to factor 2, monetary fines are commonly regarded as punishment and, in this

case, the monetary fine imposes a civil penalty equal to the monetary fines imposed in the FACE

Act for criminal violations.

As to factor 3, the civil penalty in the FACE Act only comes into play upon a finding of

scienter, a requisite element to establish a criminal offense. The prohibited activities which

43 S. REP. NO. 103-117, at 20 (1993)


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trigger both the criminal and civil penalties of the statute undisputedly require intentional

conduct, or scienter. This requirement of intent was addressed in the legislative history of the

FACE Act as an essential element of the statute:

The Committee has concluded that inclusion of the motive element is important to ensure that the Act is precisely targeted at the conduct that, as the Committee’s record demonstrates, requires new Federal legislation, deliberate efforts to interfere with the delivery of abortion-related services.44

As to factor 4, certainly the imposition of a minimum of $10,000 or more in penalties is

geared toward the traditional aims of punishment, namely retribution and deterrence. Tthe

legislative history of the statute states that the civil penalties were included as an “additional

deterrent.” See S. REP. NO. 103-117, at 20 (1993).

As to factor 5, the behavior to which the civil penalty applies is already a criminal

offense under the FACE Act. Factor number 5 was addressed in detail by the Supreme Court in

United States v. Ward. In that case, the respondent argued that the conduct he was being

penalized for was also a crime under another statute.45 Because the facts in Ward involved

criminal penalties contained in one statute, and civil penalties contained in another separate

statute enacted 70 years later, the court ultimately found the fifth Kennedy factor unavailing.46

The Supreme Court in United States v. One Assortment of 89 Firearms engaged in a

similar analysis. The Court stated that “[t]he fact that actions giving rise to forfeiture

That is not the case here. The criminal and civil penalties are contained in the same statute, in

the same section, and are triggered by exactly the same conduct.

44 S. REP. NO. 103-117, at 19 (1993) 45 Ward, 448 U.S. at 250 46 Id.; see also Duncan, 974 F.Supp. at 1334 (stressing the fact that the civil penalty at issue was provided for in a different section of the statutory scheme than the criminal penalties)


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proceedings under §924(d) may also entail the criminal penalties of §922 (a)(1) admittedly

suggests that §924(d) is criminal in nature.”47 However, the Court made the distinction that

“Congress in fact drafted §924(d) to cover a broader range of conduct than is proscribed by the

criminal provisions of §922 (a)(1).”48 Accordingly, the Court went on to conclude that

“[b]ecause the sanction embodied in §924(d) is not limited to criminal misconduct, the forfeiture

remedy cannot be said to be coextensive with the criminal penalty. What overlap there is

between the two sanctions is not sufficient to persuade us that the forfeiture proceeding may not

legitimately be viewed as civil in nature.”49

By contrast, the civil penalty in the FACE Act does not cover “a broader range of

conduct than is proscribed by the criminal provisions.” As such, the civil penalty of the FACE

Act is, in fact, “coextensive” with the criminal penalties of the FACE Act.

As to factor 6, it is hard to imagine that a minimum fine of $10,000 is not excessive and

punitive by the average person’s measure.

Based on the above analysis of both legislative history and the Kennedy factors, the civil

penalty provided in the FACE Act is punitive and, therefore, criminal in nature. As such, the

statute is unconstitutional on its face as the procedure applicable to the enforcement of the civil

penalty does not provide the protections, namely those guaranteed by the Fifth and Sixth

Amendments to the U.S. Constitution, which must attend imposition of a criminal penalty.

E. Insufficiency of Complaint. In the introductory portion of the Complaint ¶2, the

government parrots the language of the statute, but otherwise fails to aver with particularity an

47 One Assortment of 89 Firearms, 465 U.S. at 365 48 Id. at 366 49 Id. (emphasis added)


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essential factual element of its case, to wit: that any vehicle occupants were persons “obtaining

or providing services” under the statute. The averment and the identities of the alleged victims

are an essential factual element to plead the ‘motive’ element for the offense, since, under

§248(a), the government must identify that the persons were intentionally obstructed “because

that person is or has been . . . . obtaining or providing reproductive health services.” The identity

of the ‘person’ is a crucial element of pleading “intent” according to the Congress:

The Committee has concluded that inclusion of the motive element is important to ensure that the Act is precisely targeted at the conduct that, as the Committee’s record demonstrates, requires new Federal legislation, deliberate efforts to interfere with the delivery of abortion-related services.50

The Defendant Ken Scott is not on fair notice of the charges against which he must

defend, being unable to admit or deny the claim, and unable to hold the government to its

pleadings. Accordingly, for the reasons set forth above, the Complaint fails to state claim upon

which relief can be granted and, therefore, must be dismissed under Fed.R.Civ.P. 12(b)(6).

Respectfully submitted this 17th day of August, 2011.

HACKSTAFF LAW GROUP LLC

By: s/ Rebecca R. Messall Rebecca R. Messall

Hackstaff Law Group, LLC 1601 Blake Street, Suite 310 Denver, Colorado 80202 Telephone: 303-534-4317 Email: [email protected]

Attorneys for Defendant Ken Scott 50 S. REP. NO. 103-117, at 19 (1993)


mailto:[email protected]�

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CERTIFICATE OF SERVICE

I certify that on this 17th day of August, 2011 the foregoing DEFENDANT KENNETH SCOTT’S RENEWED MOTION TO DISMISS was filed electronically with Clerk of the Court using the CM/ECF System which will provide notice of such filing to all registered parties.

By:

s/ Inga Dietzman

[the signed original is on file at Hackstaff Law Group, LLC, as required by Rule 121 § 1-26(9)]


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IN THE UNITED STATES DISTRICT COURTFOR THE DISTR]CT OF COLORADO

Civil Action No. 1 1 -CV-01430-PAB-MEH

UNITED STATES OF AMERICA,

Plaintifiv.

KENNETH SCOTT and JO ANN SCOTT,

Defendants

Af,'F'IDAVIT BY STJRVEYOR RANDY WILMORE

STATEOF COLORADO )

couNrYor fuq i ss'

The undersigred, Randy Wilmore, being duly swom, over the age of 18 and havingpersonal knowledge of the matters stated hereln" deposes and states:

1. I have been a Colorado surveyor, license no.25972, for approximately 25 years,

and before that time I was an apprentice surveyor for five years. I am the owner of Wilmore &Co. Land Surveying, located in Paonia, Colorado. A copy of my curricula vitae is attached as

Exhibit A.

2. On August 10, 2011, I viewed the property owned by Planned Parenthood of theRocky Mountains, Inc. at 7155 E. 38fr Avenue, in the City and County of Denver, Colorado (the

"Property").

3. The Property is parallel to a throughfare shown as Pontiac Steet on recentdocuments described below. A sidewalk is constructed betrveen the Property and Pontiac Streetand runs parallel to both (the "Sidewdf')-

4. A driveway links the Property to Pontiac Street (the *Driveway)."

5. The Driveway crosses the Sidewalkperpendicularly.


6. I observed a yellow stipe approximately 3-inches wide which is painted across

the Driveway's width on the pavement. The Sidewalk, in relation to the yellow Driveway stripe,

continues across the Driveway on the west side of the stripe.

7. To determine whether the Property's westem boundary is marked on the

Driveway by the yellow sfip", I reviewed several survey, planning and title-related documents,including:

a. A document depicting the Property and the adjoining 60-foot right of way, titledas ALT. /ACSM Land Title Survey, deposited April 29, 2008 in the index ofCounty Surveyor's Land Survey/Right of Way Surveys at Book 74, Page 046,Reception No. L011108 in the Office of the County Surveyor for the City and

County of Denver (the * ALTA &at ey''\;

b. A certified copy, from the records of the City and County of Denver Office ofDevelopment 3"*i""r - Zonrng, of a documen! page 3 of 15, titled 3ghAvenueProject Industrial Site Plan (the *Sde Plat).

c. A certi{ied copy, from the records of the City and County of Denver Office ofDevelopment

-iervices - Zaning, of a document titled, 3*hAvenue Project

Industrial Survey PIan (the"Sur.ve1t Plan')-

d. A certified copy, from the Office of the Clerk and Recorder for the Ciry and

County of Denver, of the original 1882 Plat of Survey, titled Firsr Addition toEast Swansea (the " 1882 Plaf') depicting the Property in relation to the rest of itssurrounding subdivision.

e. A copy of a plat by Harris Kocher Smith, page 2 of 2, titled Land Survey Plat*particularly showing areas at each comer of &e Property conveyed to the City andCounty of Denver ("Land Survey Plaf).

f. Certified copies ofthe following conveyancing instruments:

(1) Warranty Deed from Fuller 38, LLC, Gmntoro to the City and County ofDenver, Grantee, recorded November 8,2A07 at Reception No. 2007174490 inthe Office of the Clerk and Recorder, City and County of Denver, Colorado.

2


@ Permanent DetentiorlWater Quality Pond with Storrn Sewer Outlet Pipe

Easement and Indemnity Agreemefiber^IeenFuller 38, LLC, Owneto and the Cityand County of Denver, recorded November 30, 2A07 at Reception No.2007184050 in the Office of the Clerk and Recorder, Crty and County of Denver,

Colorado.

(3) Special Warranty Deed from Fuller 38 LLC, Grantor, to Rocky Mountain

Planned Parenthood, Inc. d/b/a Planned Parenthood of the Rocky Mountains, Irc.,Grantee, recorded March 2,2009 at Reception No. 20A9025815 in the Of&ce ofthe Clerk and Recorder, City and Cotrnty of Denver, Colorado.

8. T\e 1882 P/a/ contains the originat dedicationto the public by the grantor of 60

foot rights of way throughout the subdivision.

g Based on my review of the above-listed documents and my ovvn fieldworkdescribed herein, I was able to determine that the yellow stripe painted on the Driveway is

theboundmy line between the Properly and the 60-foot public rigbf of way"

10. Accordingly, the 60-foot public right of way encompasses the Sidewalh a portionof the Driveway lying west of the yellow stripe and Pontiac Street.

11. The method I used to detemrine that the yellow shipe on the Driveway pavement

marks the Property boundary was to personally locate on the ground three PK Nails with Brass

Tags PLS 36062 (the'?KNails") depicted onthe ALTA Survey as being located onthe ground at

the northwest and southwest comers of the Properly. Then I located monuments set by the PKNails, better shown by *Detail

Boo on the Land Survey, and shown at the northwest comer of the

Properly by the Land Survey

12. I then personally utilized my surveying equipment, a 5800 Trimble GPS Unit, toconfirm that the boundary line I located on the ground ali$s with the yellow stripe painted onthe Driveway, I referred also to the three PK Nails on the ALTA Survey and a Rebar and Cap,

shown on the ALTA Sumey.

t3. Based on my years of experience as a licensed surveyor together with myeducation, training and personal field work described above, it is my opinion that the yellowstipe painted on the Driveway's pavement marks the boundary line dividing the Property and

the 60-foot wide public right of way-


14. Accordingly, it is also my opinion that land lying west of the yellow stripe on the

Driveway, for a distance of 60 feeL including the Sidewalk and Pontiac Sfeet, lies within thepublic right of way.

FURTTIER AFFIANT SAYETH NAUGHT.

Swomand atrnned this tl day ofAugust 2011.

By:

Subscribed and swom to before me this -LL

Auy of August, 2011 by Randy Wilmore.

Witress my hand and official seal.

My commission expiret 01qd

JESSICA B.I(AISERNOTARY PUBLIC

STATE OF COLORADO

It1 Comr*r 6pfto. 03/Ogl20l 4

4


Randy A. Wilmore PROFESSIONAL LICENSES State of Colorado Professional Land Surveyor No. 25972 State of Nevada Professional Land Surveyor No. 8321 PROFESSIONAL ASSOCIATIONS Member, Professional Land Surveyors of Colorado PROFESSIONAL EXPERIENCE 1996-Present

Oversees and responsible for every operation in Land Survey company which employees 4 full time and 4 part time employees. Our survey firm has been in operation for 11 years and continues to provide major and minor subdivisions, construction staking, boundary surveys, boundary adjustments, topographic surveys, subsidence monitoring, surface mining control, photo control, ALTA surveys, and ILC surveys

1992-1996 Chief of Surveys Valley Survey, Crawford, CO

Responsible for scheduling and supervision of surveys. All phases of construction surveys, boundary surveys, major and minor subdivisions, topographic surveys and photo control. Supervision: Don Geddes (970) 921 1991-1992 Chief of Surveys, E. Schaaf and Associates, Delta, CO Worked with Mineral Surveyors on many projects throughout the Western US prepared contracts for Forest Service contract work. Retraced Mineral Survey Boundaries for Forest Service in New Mexico and Idaho with marking and posting. Performed several property boundaries in Colorado. Underground surveying experience at West Elk Coal Mine, - Horizontal and Vertical control- Construction layout of Conveyor Belt Lines, Surface construction for Stacker Tubes. Operating computer with COGO and AutoCad software. Supervisor: Ernie Schaaf (970) 974-8613 1989-1991 Owner and Partner Basin and Range Surveying, Winnemucca, NV Providing professional land surveying services in mining, boundary, construction, cadastral, topographic, control and water rights in Nevada, California and Idaho. Managed and operated several computer aided drafting systems including AutoCad. Managed crews, payroll, marketing and other various responsibilities of running a small business

EDUCATION 1983-1984: Red Rocks Community College, Denver, CO, Associate Degree, Surveying

40581 German Cr. Dr. Paonia CO 81428

(970) 527 4200 [email protected]


Inga Dietzman

Typewritten Text

EXHIBIT A

1981: Colorado State University, Fort Collins, CO, Engineering courses, one semester 1978-1980: Colorado Mountain College, Glenwood Springs, CO, Associate Degree, Natural Resource Management 1975-1978: North Denver High School, Denver, CO, Graduate

OTHER LICENSES State of Idaho: Professional Land Surveyor No. 6238 State of California: Professional Land Surveyor No. 6555

HONORS 1984: Presidents Honor Roll Community College of Denver, Red Rocks Campus

1979-1980: Student Government Vice President Who’s Who Among Students in American Junior College Colorado Mountain College, Glenwood Springs, CO

TRAINING Annual 3-day seminars PRIOR EXPERT MCCP, LLC v. CDOT, Case No. 05-cv-136, Montrose County District TESTIMONY Court

Gregory v. Tye et. al., Case No. 06-cv-215, Montrose County District Court


DEFENDANT KENNETH SCOTT’S RENEWED MOTION TO DISMISS · 2014-11-24 · in the united states district court . for the district of colorado . civil action no. 11-cv-01430-pab-meh .

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