ACLU Files Suit to Challenge RTD Rule That Bans Contracts With
Individuals Who Contribute to Campaign to Support Light Rail

FOR IMMEDIATE RELEASE
September 3, 1997

The American Civil Liberties Union of Colorado (ACLU) filed suit today in federal court to challenge a controversial resolution adopted August 19 by the Board of the Regional Transit District (RTD). The resolution is designed to dissuade potential contractors from donating money to groups that take a stand on this fall's "Guide the Ride" ballot measure, in which voters will decide whether to raise the sales tax that goes to the RTD. If it passes, "Guide The Ride" will raise $3.5 billion through the year 2015 to expand the commuter light rail system and build other improvements to public transit.

The resolution states that if "Guide the Ride" passes, the RTD will refuse to enter into any "contractual or financial relationship" with any individual or entity that donated more than $100 to any group that was organized to influence the public's vote on the ballot measure. The ban on contracts will last until the year 2015.

The lawsuit alleges that the resolution violates the free speech rights of Transit 97, a group organized to promote a "yes" vote on "Guide The Ride," as well as the rights of potential donors to the issue campaign who may someday wish to contract with the RTD. In addition to Transit 97, plaintiffs include Elam Construction and John T. Doolittle and Associates, both contractors who would like to support "Guide The Ride" without giving up the opportunity to do business with RTD in the future.

"The First Amendment protects everyone's right to speak out on public issues," said Ed Ramey, the ACLU Board Chair who is also serving as an ACLU volunteer cooperating attorney in the case. "The First Amendment also protects the right to join together with others in an organized campaign to persuade the public. That right includes the right to contribute money to help that organized campaign carry its message to the public. Neither government employees nor government contractors give up their First Amendment rights simply because they receive government money in return for their services."

"This resolution violates the First Amendment because it establishes a political litmus test for the awarding of any RTD contract for the next 18 years," explained Mark Silverstein, ACLU Legal Director. "Prospective contractors will be disqualified for one reason and one reason only: their exercise of rights of expression and political association that are protected by the Constitution. The Constitution does not permit the RTD to attach this unconstitutional condition to its contracts."

"Everyone, including persons who do business with the government, has the right to participate in the public debate of issues that will be decided by the voters," Ramey added. "This resolution unfairly forces potential contractors to choose between their right to free speech and their right to compete fairly for government contracts."

"The resolution adopted by RTD represents an especially dangerous violation of First Amendment rights," Silverstein concluded, "because its effect is felt long before the RTD ever takes any action to deny anyone a contract. The resolution has the immediate effect of chilling even potential contractors from exercising their First Amendment rights. By coercing potential contractors into silence, the RTD resolution violates the First Amendment rights of the public as well as the plaintiffs in this case, because it deprives all of us of the opportunity to hear voices and views that may be among the most well-informed about the very issue the voters must decide."

The challenged resolution was sponsored by Jon Caldara, an RTD Board member who also heads the opposition to the "Guide The Ride" proposal. The resolution was adopted after heated debate among the Board, which had already received advice from its attorney that the resolution would be unconstitutional. The Board paid for an outside attorney to render a second opinion, which confirmed the resolution was probably unconstitutional.

The lawsuit seeks a declaration that the resolution is unconstitutional and a preliminary and permanent injunction against its enforcement.

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