Petition for Writ of Certiorari — Van Sant & Co., Petitioner v. Town of Calhan, Colorado, et al.

No. _________

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------VAN SANT & CO.,

Petitioner,

v.

TOWN OF CALHAN, COLORADO;

CAMERON CHAUSSEE;

TYLER CHAUSSEE;

BRENT CHAUSSEE;

ANNETTE CHAUSSEE;

CALVIN CHAUSSEE, II;

BLAKE CHAUSSEE;

CONTINENTAL PROPERTIES, INC.;

VIDEO PRODUCTIONS INC.;

DOMINION DEVELOPMENT, INC.;

Respondents.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

---------------------------------♦--------------------------------PETITION FOR WRIT OF CERTIORARI

---------------------------------♦--------------------------------THOMAS P. MCMAHON

Counsel of Record

BENJAMIN P. WIECK

JONES & KELLER, P.C.

1675 Broadway, 26th Floor

Denver, Colorado 80202

(303) 573-1600

tmcmahon@joneskeller.com

January 10, 2024

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTIONS PRESENTED

The questions presented include the following:

1. Does the LGAA entitle local government officials to immunity from antitrust damages when they

act unlawfully?

2. Does a Court of Appeals impermissibly depart

from long-established legal teachings of this Court

when it:

a. Fails to believe a summary judgment nonmovant’s evidence on disputed issues of material fact

and fails to presume the non-movant’s version of such

disputed factual issues is correct?

b. Fails to place on the parties asserting antitrust immunity the burden of establishing their entitlement to it but, rather, imposes on their opponent the

burden of disproving such entitlement?

c. Finds Noerr-Pennington antitrust immunity to exist based simply on an assumption which conflicts with the facts that the parties asserting the

defense presented no evidence of engaging in government petitioning activity and expressly denied ever

having done so?

This Petition principally concerns the recent decision of the United States Court of Appeals for the

Tenth Circuit regarding immunity of local government

officials from damages under the Local Government

Antitrust Act (“LGAA”). In pertinent part, it establishes

ii

QUESTIONS PRESENTED – Continued

that they are not deprived of LGAA protection from antitrust damages when they act unlawfully by violating

an express prohibition against engaging in the very

conduct being challenged as anticompetitive. That conflicts with the landmark decision of the United States

Court of Appeals for the Fourth Circuit 36 years ago in

Sandcrest Outpatient Servs., P.A. v. Cumberland Cnty.

Hosp. Sys., 853 F.2d 1139, 1145 & n. 7, 1148 (4th Cir.

1988), holding – based on Congressional intent derived

from the act’s legislative history – that local officials’

actions must be lawful in order to qualify for LGAA

immunity.1 It thus creates a split between the circuits

on an exceptionally important question of antitrust

immunity under the LGAA which this Court has not

previously addressed but should now resolve. This Petition also concerns the Tenth Circuit decision’s several

radical deviations from long-standing precedents of

this Court relating to antitrust immunity and summary judgment evidentiary standards. It so far departs from those teachings as to necessitate this

Court’s exercise of its supervisory power to secure and

maintain the uniformity of its decisions and the clarity

of long-established law.

1

It also conflicts with the Tenth Circuit=s own prior decision

19 years ago in GF Gaming Corp. v. City of Blackhawk, 405 F.3d

876, 885 (10th Cir. 2005), in the same respect.

iii

PARTIES TO THE PROCEEDINGS

Petitioner Van Sant & Company was the Plaintiff

in the proceedings before the United States District

Court for the District of Colorado and the Appellant in

the United States Court of Appeals for the Tenth Circuit.

Respondents are the Town of Calhan, Colorado;

Cameron Chaussee; Tyler Chaussee; Brent Chaussee;

Annette Chaussee; Calvin Chaussee, II; Blake Chaussee;

Continental Properties, Inc.; Video Productions, Inc.;

and Dominion Development, Inc. Collectively, these ten

Respondents were the Defendants in the proceedings

before the United States District Court for the District

of Colorado and the Appellees in the United States

Court of Appeals for the Tenth Circuit.

CORPORATE DISCLOSURE STATEMENT

Petitioner Van Sant & Co. is a nongovernmental

corporation. It is solely owned by one individual,

Thomas D. Brierton, and no parent corporation or publicly held company owns 10% or more of its stock.

LIST OF RELATED CASES

• Van Sant & Co. v. Town of Calhan, a Colorado

municipality, et al., No. 1:20-cv-03035-RBJ, United

States District Court for the District of Colorado. Order granting Defendants’ Motions for Summary Judgment entered on May 18, 2022, as Amended on May 20,

2022.

iv

LIST OF RELATED CASES – Continued

• Van Sant & Co. v. Town of Calhan, a Colorado

municipality, et al., No. 22-1190. Opinion and Judgment entered on October 13, 2023.

v

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................................

i

PARTIES TO THE PROCEEDINGS ...................

iii

CORPORATE DISCLOSURE STATEMENT ......

iii

LIST OF RELATED CASES ................................

iii

TABLE OF CONTENTS ......................................

v

TABLE OF AUTHORITIES ................................. viii

PETITION FOR A WRIT OF CERTIORARI .......

1

OPINIONS BELOW.............................................

1

JURISDICTION ...................................................

1

STATUTES INVOLVED ......................................

2

INTRODUCTION ................................................

2

STATEMENT OF THE CASE..............................

5

REASONS FOR GRANTING THE PETITION .....

11

I.

The Scope of LGAA Immunity Affects Local Government Officials in Every Municipality Nationwide; This Court Should

Confirm That They Must Act Lawfully for

Their Actions to be Protected .................... 11

A. The Legislative History Establishes

Congress’s Intent That Local Officials’

Actions Must Be Lawful in Order to

Qualify For LGAA Immunity .............. 11

B. Conversely, The Tenth Circuit Decreed

Here that Unlawful Non-Criminal Activity Does Not Deprive Local Officials

of LGAA Protection ............................. 15

vi

TABLE OF CONTENTS – Continued

Page

II.

This Court Should Exercise its Supervisory Power to Correct the Tenth Circuit’s

Radical Departures from Long-standing

Supreme Court Precedents ........................ 17

A. The Tenth Circuit Failed to Adhere to

Bedrock Summary Judgment Principles ....................................................... 17

B. The Tenth Circuit Misplaced the Burden of Proof Regarding LGAA Immunity On Van Sant ................................... 20

C. The Tenth Circuit Employed Pleading

Standards, Rather than Summary

Judgment Evidentiary Standards, and

Found Noerr-Pennington Immunity

Based on an Assumption at Odds with

the Evidence ........................................ 21

CONCLUSION..................................................... 24

APPENDIX

Van Sant & Co. v. Town of Calhan, No. 22-1190,

83 F.4th 1254, opinion (10th Cir. Oct. 13,

2023) ................................................................. App. 1

Van Sant & Co. v. Town of Calhan, No. 22-1190,

Judgment (10th Cir. Oct. 13, 2023)................ App. 58

Van Sant & Co. v. Town of Calhan, No. 1:20-cv03035-RBJ, 2022 WL 1567564, Order on Motions for Summary Judgment (D. Colo. May

18, 2022) ......................................................... App. 60

vii

TABLE OF CONTENTS – Continued

Page

Van Sant & Co. v. Town of Calhan, No. 1:20-cv03035-RBJ, Amended Order on Motions for

Summary Judgment (D. Colo. May 20, 2022) ... App. 87

Van Sant & Co. v. Town of Calhan, No. 1:20-cv03035-RBJ, Final Judgment (D. Colo. May 20,

2022) ............................................................. App. 113

Van Sant & Co. v. Town of Calhan, No. 22-1190,

order (10th Cir. Nov. 21, 2023) ..................... App. 115

15 U.S.C. § 1 ..................................................... App. 117

15 U.S.C. § 2 ..................................................... App. 117

15 U.S.C. § 34(1)(A) .......................................... App. 118

15 U.S.C. § 35(a) ............................................... App. 118

28 U.S.C. § 1254(1) ........................................... App. 118

C.R.S. § 24-18-103(1), (2) ................................. App. 119

C.R.S. § 24-18-105(2) ....................................... App. 119

C.R.S. § 24-18-109(3)(a), (b) ............................. App. 120

C.R.S. § 24-18-109(5)(b)(I) ............................... App. 120

C.R.S. § 24-18-109(5)(b)(II) .............................. App. 121

C.R.S. § 24-18-110 ............................................ App. 121

C.R.S. § 31-15-101(2) ....................................... App. 122

C.R.S. § 31-15-103 ............................................ App. 122

Town of Calhan Ordinance 2016-09................ App. 123

Town of Calhan Ordinance 2018-05................ App. 126

Town of Calhan Ordinance 2018-13................ App. 128

viii

TABLE OF AUTHORITIES

Page

CASES

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986) .................................................17

Arizona v. Maricopa Cnty. Med. Soc’y,

457 U.S. 332 (1982) .................................................18

Calif. Retail Liquor Dealers Ass’n v.

Midcal Alum., Inc.,

445 U.S. 97 (1980) ...................................................15

City of Lafayette v. La. Power & Light Co.,

435 U.S. 389 (1978) ............................... 14, 20, 22, 23

Cmty. Commc’ns Co. v. City of Boulder,

455 U.S. 40 (1982) .....................................................6

Eastman Kodak Co. v. Image Tech. Servs., Inc.,

504 U.S. 451 (1992) ........................................... 17, 18

E.R.R. Pres. Conf. v. Noerr Motor Freight, Inc.,

365 U.S. 127 (1961) .................................... 4, 5, 21-23

FTC v. Ticor Title Ins. Co.,

504 U.S. 621 (1992) .................................................21

GF Gaming Corp. v. City of Blackhawk,

405 F.3d 876 (10th Cir. 2005) ............ 4, 13, 14, 16, 17

Goldfarb v. Va. State Bar,

421 U.S. 773 (1975) ........................................... 21, 22

Kannady v. City of Kiowa,

590 F.3d 1161 (10th Cir. 2010) .......................... 18, 21

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574 (1986) .................................................17

ix

TABLE OF AUTHORITIES – Continued

Page

Octane Fitness, LLC v. ICON Health & Fitness, Inc.,

572 U.S. 545 (2014) .................................................22

Sandcrest Outpatient Servs., P.A. v. Cumberland

Cnty. Hosp. Sys.,

853 F.2d 1139 (4th Cir. 1988) ............. 4, 11-14, 16, 17

U.S. v. Topco Assocs.,

405 U.S. 596 (1972) .................................................14

United Mine Workers of Am. v. Pennington,

381 U.S. 657 (1961) .................................... 4, 5, 21-23

Van Sant & Co. v. Town of Calhan, 2022 WL

1567564 (D. Colo. May 18, 2022) ..............................1

Van Sant & Co. v. Town of Calhan, No. 1:20 cv

03035 RBJ (D. Colo. May 20, 2022) ..........................1

Van Sant & Co. v. Town of Calhan,

83 F.4th 1254 (10th Cir. Oct. 13, 2023) ..... 1, 16, 18-22

CONSTITUTIONAL PROVISIONS

Colo. Const., art. XX, § 6 ...............................................5

RULES

F.R.C.P. 8(d)(3) ............................................................22

STATUTES

15 U.S.C. §§ 1-2 .............................................................2

15 U.S.C. § 34(1)(a) .......................................................5

15 U.S.C. § 35 .......................................................... 2, 11

x

TABLE OF AUTHORITIES – Continued

Page

15 U.S.C. § 35(a) ...................................................... 5, 11

28 U.S.C. § 1254(1) ........................................................1

42 U.S.C. § 1983 ............................................................3

C.R.S. § 24-18-103 .........................................................2

C.R.S. § 24-18-103(2) ..................................................16

C.R.S. § 24-18-105(2) ..................................................19

C.R.S. § 24-18-109 .........................................................2

C.R.S. § 24-18-109(3)(a) ............................ 6, 7, 9, 15, 19

C.R.S. § 24-18-109(3)(b) ..............................................10

C.R.S. § 24-18-109(5)(b)(I) ..........................................19

C.R.S. § 24-18-110 .........................................................2

C.R.S. § 31-15-101(2) ....................................................5

C.R.S. § 31-15-103 .........................................................6

LEGISLATIVE HISTORY

S.Rep. No. 593, 98th Cong., 2d Sess. 8 (1984) ............12

1

PETITION FOR A WRIT OF CERTIORARI

Van Sant & Company petitions for a writ of certiorari to review the judgment of the United States

Court of Appeals for the Tenth Circuit in this case.

---------------------------------♦---------------------------------

OPINIONS BELOW

The Tenth Circuit’s opinion is reported at Van

Sant & Co. v. Town of Calhan, 83 F.4th 1254 (10th Cir.

Oct. 13, 2023), and reproduced at App. 1-57. The Tenth

Circuit’s dismissal of petitioner’s motion for rehearing

en banc is reproduced at App. 115-16. The District

Court for the District of Colorado’s opinion granting

summary judgment to all defendants is reported at

Van Sant & Co. v. Town of Calhan, 2022 WL 1567564

(D. Colo. May 18, 2022), and reproduced at App. 60-86.

The District Court’s Amended Order on Motions for

Summary Judgment, Van Sant & Co. v. Town of

Calhan, No. 1:20 cv 03035 RBJ (D. Colo. May 20, 2022),

is unpublished and reproduced at App. 87-112.

---------------------------------♦---------------------------------

JURISDICTION

The Tenth Circuit entered judgment on October

13, 2023. App. 58-59. It dismissed Van Sant’s petition

for rehearing en banc on November 21, 2023. App. 11516. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

---------------------------------♦---------------------------------

2

STATUTES INVOLVED

This case involves interpretation of Sections 1 and

2 of the Sherman Act, 15 U.S.C. §§ 1-2; Section 35 of

the Local Government Antitrust Act, 15 U.S.C. § 35;

and Colorado Ethics Code sections C.R.S. §§ 24-18-103,

109 and 110.

---------------------------------♦---------------------------------

INTRODUCTION

In pertinent part, the LGAA prohibits recovery of

antitrust damages from any local government official

for actions undertaken “in an official capacity.” 15

U.S.C. § 35. Foremost, this case presents a critical opportunity to confirm that immunity conferred by the

LGAA is not absolute and does not shield local officials

from damages for their own unlawful conduct. This issue is of paramount importance, because the Tenth

Circuit’s decision essentially enables such officials to

enact self-serving laws with impunity.

That is what happened in this situation involving

the small (population 700-plus) rural town of Calhan,

Colorado. Among its residents are Annette and Calvin

Chaussee II, who have controlled and operated Cadillac Jack’s RV Park in Calhan since the 1980s. Petitioner Van Sant operated what had been solely a

mobile home park there until 2015, when it decided to

also start renting space to RVs – which put it in direct

competition with Cadillac Jack’s. Over the next few

years, Calhan’s Planning & Development Committee

(“PDC”) and Board of Trustees (“Board”) came to

3

include the Chaussees’ son Brent (PDC) and grandsons

Cameron (PDC, Board) and Tyler (Board) – all of whom

were downstream beneficiaries in Cadillac Jack’s.

With their participation, the PDC recommended

and the Board enacted a series of ordinances relating

to RVs. The first two outlawed Van Sant’s rental of

spaces to RVs; the third imposed cost-prohibitive regulations precluding it from converting to an RV park.

Yet, in direct violation of the Colorado Ethics Code, neither Cameron nor Tyler Chaussee abstained from voting on the ordinances or disclosed their conflicts of

interest. That is particularly problematic regarding

the third ordinance, where they provided two of the

three enacting votes without which the measure would

have failed.

After those ordinances effectively put Van Sant

out of business, it brought claims against the town of

Calhan and Calhan officials Cameron, Tyler and Brent

Chaussee under Sections 1 and 2 of the Sherman Act

alleging that passage of the ordinances and related

conduct constituted an unreasonable restraint of

trade and a conspiracy to monopolize.2 Van Sant also

included the same Sherman Act claims against nongovernmental defendants consisting of other Chaussee

family members (Annette, Calvin and another son,

2

Van Sant also asserted claims against the Town defendants

under 42 U.S.C. § 1983, alleging they violated its 14th Amendment rights to due process and equal protection. The district court

granted summary judgment to defendants on those claims, which

the Tenth Circuit affirmed. Although such rulings are likewise

flawed, Van Sant does not seek this Court’s review of them.

4

Blake) and certain related corporate defendants with

beneficial interests in Cadillac Jack’s.

Shortly before trial, the district court granted

summary judgment to Calhan and its three local officials on the basis that the LGAA provided them with

immunity from the antitrust claims. The Tenth Circuit

affirmed, asserting that Van Sant had failed to prove

their actions failed to qualify for such immunity.

Likewise, the district court granted summary

judgment to the non-governmental defendants on the

basis that the Noerr-Pennington doctrine provided

them with immunity from the antitrust claims. Again

the Tenth Circuit affirmed, after assuming alternative

facts at odds with the evidence (or lack thereof ).

With respect to LGAA immunity from damages,

this Court should adopt the Fourth Circuit’s ruling in

Sandcrest and the Tenth Circuit’s prior ruling in GF

Gaming Corp. v. City of Black Hawk, 405 F.3d 876, 885

(10th Cir. 2005), to both of which the Tenth Circuit paid

lip service but did not adhere. The Court should make

crystal clear that the LGAA does not immunize local

government officials from antitrust damages flowing

from their own unlawful actions. The perils of allowing

the LGAA ruling to stand are manifest. It would signal

to self-aggrandizing public officials that the LGAA will

provide them with blanket immunity from antitrust

damages for unlawful conduct. That, in turn, would

encourage them to perpetuate their self-serving anticompetitive behavior. Neither the express language

of the LGAA nor the legislative history supporting it

5

afford such unqualified immunity, and this Court

should not provide it tacitly through inaction.

Further, this Court should reaffirm its long-standing precedents – from which the Tenth Circuit egregiously deviated – that: (i) in the summary judgment

context a non-movant’s evidence is to be believed, all

justifiable inferences are to be drawn in its favor and

its version of any disputed factual issues is presumed

correct; (ii) parties asserting antitrust immunity themselves bear the burden of establishing their entitlement to it; and (iii) Noerr-Pennington antitrust

immunity cannot exist where the parties asserting it

present no evidence of having engaged in government

petitioning activity.

This Petition should be granted and the Tenth Circuit’s decision overturned.

---------------------------------♦---------------------------------

STATEMENT OF THE CASE

Calhan, Colorado, is a statutory town that is governed by its Board consisting of a Mayor and six other

Trustees.3 Van Sant Opening Appellate Brief (“Op.

Br.”) at 4-5. As such, it is restricted to the powers expressly delegated to it by the legislature. See C.R.S.

§ 31-15-101(2).4 Thus, while Calhan’s Board has the

3

Calhan is a “local government” as defined by the LGAA,

see 15 U.S.C. § 34(1)(a), thus rendering its Trustees and PDC

members government officials as referenced in 15 U.S.C. § 35(a).

4

Conversely, Colorado “home rule” municipalities are

granted by Colo. Const., art. XX, § 6, extensive powers of selfgovernment in local and municipal matters. They are “entitled to

6

“power to make and publish ordinances,” it must do so

in a manner that is not “inconsistent with the laws of

the state.” C.R.S. § 31-15-103. That includes adhering

to the provisions of Colorado’s Ethics Code. Among

other things, that Code requires local officials to abstain from voting on, and from influencing other such

officials regarding, any matters before the governing

body in which they have a personal or private interest;

and to disclose such interest to that body. C.R.S. § 2418-109(3)(a).

There are now and have been only two RV parks

in Calhan. One, which has been in operation just since

2015, is Jolly’s RV & Tiny Home Park (“Jolly’s”), with

15 long-term RV rental spaces. The other, which has

existed since the 1980s, is the aforementioned Cadillac

Jack’s, with 37 long-term RV rental spaces. Op. Br. at

6. During its existence Cadillac Jack’s has been controlled, in some form or other, by Annette Chaussee

and managed by her husband Calvin. Id. The ownership structure governing it and the property on which

it sits is a quagmire involving three corporate entities

owned, in turn, by three separate trusts. However, all

of those trusts specify Annette and Calvin’s descendants – including the three Chaussee town defendants

(Cameron, Tyler and Brent) – as beneficiaries. Id. Accordingly, the latter each enjoy a downstream financial

interest in Cadillac Jack’s. Id.

exercise ‘the full right of self-government in both local and municipal matters,’ and with respect to such matters the[ir] City Charter[s] and ordinances supersede the laws of the State.” Cmty.

Commc’ns Co. v. City of Boulder, 455 U.S. 40, 43 (1982).

7

As noted above, during the period when the RV ordinances were recommended and adopted, Annette

and Calvin’s grandsons (Cameron [PDC Chair 2015–;

Board 2014-18, Mayor 2017-18]; Tyler [Board 201720]) and son (Brent [PDC 2015-17]) gained, and played,

significant roles in Calhan’s government. Id. at 5.

Van Sant’s Mobile Home Park Begins Competing

For Long-Term RV Rental Business; Calhan’s

Board Then Enacts Ordinance 2016-09.

As indicated above, Van Sant had historically operated a mobile home park on its property in Calhan.

Id. at 7. In mid-2015, for economic reasons Van Sant

began renting certain of its spaces to RVs on a longterm basis and, in so doing, became a competitor of Cadillac Jack’s and Jolly’s. Id. At the time, Calhan had no

regulations governing RVs nor prohibiting Van Sant

from renting to them. Id. Significantly, however, in October 2015 Cameron Chaussee became Chair of the

PDC (which advises the Board on issues related to urban planning and land use, id. at 5) and his father

Brent became a member. Id. at 8.

Six months later, in April 2016, the PDC (including Cameron and Brent) recommended to Calhan’s

Board that it adopt a wide-ranging “Land Development Code,” which the Board (including Cameron)

unanimously enacted as Ordinance 2016-09. In violation of Colorado’s Ethics Code § 24-18-109(3)(a), Cameron seconded the motion to bring the ordinance to a

vote and then voted for its approval as a member of the

8

Board; he did not disclose to the Board his beneficial

interest in Cadillac Jack’s. Among other things, the

Ordinance instituted separate definitions for a “Mobile

Home,” “Manufactured Home,” “Recreational Vehicle

(RV),” and “Manufactured Home Park.” It also decreed

for the first time that “RVs are not permitted within

manufactured home parks.” A provision that would

have excused Van Sant from that provision was rejected. As a result, it was suddenly precluded from

renting space to RVs. Id. at 8-9.

Shortly after Ordinance 2016-09 was enacted,

Calhan began citing Van Sant repeatedly for alleged

violations and ultimately initiated criminal enforcement action against it. Meanwhile, Van Sant began the

expensive and time-consuming process of removing all

“Manufactured Homes” from its property so it could

again rent space to RVs. Id. at 9-10.

Van Sant Informs Calhan’s Board It Intends to

Completely Convert to An RV Park; Calhan’s

Board Then Enacts Ordinance 2018-05.

At a Calhan town meeting in March 2018 attended

by Cameron and Tyler Chaussee, Van Sant announced

its intention to fully convert to an RV park with 34

spaces for rent. Two weeks later, the Board held a “Special Meeting,” where the only agenda item was consideration of a new ordinance to expand the definition of

“Manufactured Home Park” to also encompass “Mobile

Homes.” The expressly stated purpose of the new ordinance was to “prohibit recreational vehicles . . . on such

9

parcels. . . .” Tyler seconded the motion to enact the

new ordinance, which passed unanimously with his

and Cameron’s consent. Again, both Cameron and

Tyler Chaussee violated Colorado’s Ethics Code when

they failed to abstain from voting on the proposal and

disclose to the Board their conflict of interest. Id. at

10-11; C.R.S. § 24-18-109(3)(a). The effect was to increase the burden on Van Sant to remove both manufactured and mobile homes before it could rent spaces

to RVs or operate as an RV park. Id. at 11.

Van Sant Continues Its Plans to Convert to an

RV Park; Meanwhile Calhan’s Board Passes

Ordinance 2018-13.

In August 2018, Calhan’s attorney responded to

an email from Van Sant’s counsel to confirm that the

town did not have formal zoning districts, such that

Van Sant was “currently able to establish an RV Park

on its property . . . without specific approval from

[Calhan].” Id.

At a meeting on October 3, 2018, the PDC noted

Van Sant was proceeding with its conversion plans and

discussed how to pass regulations requiring Van Sant

to make improvements to its property before it could

operate as an RV park. Id. Six days later, the PDC (including Cameron and Brent Chaussee) recommended

that Calhan’s Board enact an ordinance subjecting

new RV parks in the town to eight pages of costly and

onerous regulations. Id. at 11-12. In that ordinance,

Calhan asserted that “such regulations have become

10

necessary due to the influx of recreational (RV) parks

within the town limits of Calhan,” even though there

were no properties other than Van Sant’s seeking to

become an RV park there. Id. at 12.

Immediately following the PDC meeting, the

Board enacted Ordinance 2018-13. Tyler Chaussee advanced the motion, and he and Cameron provided two

of the three votes in favor of its adoption. Yet again,

they violated the Colorado Ethics Code by doing so and

failing to disclose to the Board their conflict of interest.

Id.5

Ordinance 2018-13’s new requirements made it

prohibitively expensive for Van Sant to continue converting its property to an RV park. To this day, the site

sits empty and unused. Id. Yet, that ordinance also conveniently included a “grandfathering” clause, which

exempted Cadillac Jack’s and Jolly’s from ever having

to comply with those regulations unless they make the

unlikely decision to expand or renovate their existing

facilities. Id. at 13.

****

As explained above, following all of the preceding

Van Sant ultimately initiated this lawsuit; the district

court granted summary judgment in favor of defendants; and the Tenth Circuit affirmed.

---------------------------------♦--------------------------------5

Had they made such disclosure, which they did not, they

could have so voted to provide a quorum and enable the Board to

act. C.R.S. 24-18-109(3)(b).

11

REASONS FOR GRANTING THE PETITION

I.

The Scope of LGAA Immunity Affects Local

Government Officials in Every Municipality

Nationwide; This Court Should Confirm

That They Must Act Lawfully for Their Actions to be Protected.

The LGAA prohibits recovery of antitrust damages, interest, costs or attorney’s fees against “any local government . . . official . . . acting in an official

capacity.” 15 U.S.C. § 35(a) (emphasis added). The act

does not define “official capacity,” nor has this Court

ever interpreted that term in the 40 years since the

LGAA was enacted.

Yet, basic principles of statutory construction

based on the act’s legislative history make clear that

Congress did not intend to bestow absolute, unqualified immunity from antitrust liability on local government officials. If it did, Section 35 would not include

the “acting in an official capacity” limitation. That is

why both the Fourth and Tenth Circuits long ago concluded that a public official must act lawfully before

LGAA immunity may attach. This Court should now

enshrine that interpretation in bedrock to remove any

doubt.

A. The Legislative History Establishes

Congress’s Intent That Local Officials’

Actions Must Be Lawful in Order to

Qualify For LGAA Immunity.

Thirty-six years ago, the Fourth Circuit addressed

the scope of LGAA immunity in Sandcrest Outpatient

12

Servs., P.A. v. Cumberland Cnty. Hosp. Sys., 853 F.2d

1139 (4th Cir. 1988). There, an association of physicians asserted Sherman Act claims against a hospital

and its board of trustees after its contract to provide

emergency room services was not renewed. Id. at 1141.

Specifically, the physicians argued that the board’s creation of an ad hoc committee to review bids for the

emergency room contract violated the Sherman Act because certain members of the board and the ad hoc

committee engaged in a boycott of, and refused to deal

with, their group. Id.

Sitting by designation, Justice Powell explained

that, on its face, the phrase “acting in an official capacity” includes those lawful actions,

undertaken in the course of a defendant’s performance of his duties, that reasonably can be

construed to be within the scope of his duties

and consistent with the general responsibilities and objectives of his position. This interpretation is also supported by the legislative

history.

Id. at 1145 (emphasis added). He then embarked on a

review of that legislative history, id. n.7, emphasizing

“[t]he intent of [this] provision is to insure that local

government officials performing their normal, lawful

functions will not be personally responsible for damages when the local government itself is not.” Id. (emphasis added) (quoting S.Rep. No. 593, 98th Cong., 2d

Sess. 8 (1984)).

13

Justice Powell concluded by noting “[t]his definition is broad and consistent with the House legislative

history” as well. Id. He then drove the point home once

and for all by reiterating that the test for LGAA immunity was a two-pronged objective one: whether the

challenged actions of local officials “were lawful and

taken within the scope of their authority.” Id. at 1148

(emphasis added, citing id. at 1145).

The Fourth Circuit ultimately determined that the

hospital board was entitled to LGAA immunity because it was authorized to create the ad hoc committee

and none of its conduct was unlawful (in the sense of

being prohibited by the hospital system’s or medical

staff ’s bylaws). Id. at 1143, 1144-45, 1146. Seventeen

years later, in GF Gaming Corp. v. City of Black Hawk,

405 F.3d 876 (10th Cir. 2005). The Tenth Circuit

adopted Sandcrest’s analysis and recognized that

LGAA immunity for local officials is limited to lawful

conduct by them. The GF plaintiffs had brought Sherman Act claims against Black Hawk and certain of its

officials alleging they conspired to restrain and monopolize trade in the limited gaming industry. Id. at 879.

In reaching its result, the Tenth Circuit emphasized

“[t]he legislative history of the LGAA . . . demonstrates

that Congress intended the phrase ‘acting in an official

capacity’ to be given broad meaning encompassing all

‘lawful actions . . . ’ ” of local government officials. Id.

at 885 (emphasis added, quoting Sandcrest, 853 F.2d

at 1145). In the latter regard, the Tenth Circuit mirrored the Fourth Circuit’s approach, specifically noting

14

that “the [challenged] practices were not specifically

prohibited by state law. . . .” Id. at 881.

The Sandcrest and GF Gaming decisions also accord with this Court’s antitrust jurisprudence, which

have consistently recognized the paramount importance of the Sherman Act. As this Court noted 46

years ago:

Antitrust laws in general, and the Sherman

Act in particular, are the Magna Carta of free

enterprise. They are as important to the

preservation of economic freedom and our

free-enterprise system as the Bill of Rights is

to the protection of our fundamental personal

freedoms.

City of Lafayette v. La. Power & Light Co., 435 U.S. 389,

398 n.16 (1978) (quoting U.S. v. Topco Assocs., 405 U.S.

596, 610 (1972)). As the Court went on to explain, “the

antitrust laws establish overarching and fundamental

policies. . . .” Id. at 399. It further emphasized that:

[i]n enacting the Sherman Act . . . Congress

mandated competition as the polestar by

which all must be guided in ordering their

business affairs. It did not leave this fundamental national policy to the vagaries of the

political process, but established a broad policy, to be administered by neutral courts. . . .

Id. at 406. This Court subsequently underscored that

“[a]lthough this federal interest [in enforcing the national policy in favor of competition] is expressed

through a statute rather than a constitutional

15

provision, Congress ‘exercis[ed] all the power it possessed’ under the Commerce Clause when it approved

the Sherman Act.” Calif. Retail Liquor Dealers Ass’n v.

Midcal Alum., Inc., 445 U.S. 97, 110-11 (1980).

Given this Court’s deference to the sanctity of the

Sherman Act, it is no surprise that Congress limited

the protection of the LGAA to local officials only when

“acting in their official capacity.” Nor is it surprising

that the Fourth and Tenth Circuits, relying on the act’s

legislative history, have interpreted Congress to intend

that such officials must be acting lawfully in order to

be afforded immunity from antitrust damages. This

Court should now provide its imprimatur.

B. Conversely, The Tenth Circuit Decreed

Here that Unlawful Non-Criminal Activity Does Not Deprive Local Officials

of LGAA Protection.

The Colorado Ethics Code prohibits local government officials from voting on – or attempting to influence other such officials regarding – matters in which

they have a personal or private interest, and requires

them to disclose such interest to the governing body.

C.R.S. § 24-18-109(3)(a). Here, the three Chaussee

town defendants (Cameron, Tyler and Brent) each had

such an interest in the three Calhan RV ordinances

because of their beneficial interests in Cadillac Jack’s

RV Park. Their actions in voting on the ordinances and

not disclosing their interests were unlawful; they were

expressly prohibited by that very statute.

16

The Tenth Circuit did not accept that the three

had disqualifying personal interests. It nevertheless

concluded that even if they did and still voted while

failing to disclose those interests, that did not deprive

them of LGAA protection. See Van Sant & Co. v. Town

of Calhan, 83 F.4th 1254, 1274 (10th Cir. 2023).6 That

is the crux of the problem.

To reach its result, the Tenth Circuit invoked a

slight-of-hand ploy – focusing on whether the

Chaussees’ actions were “official,” to the virtual exclusion of whether they were also “lawful” as required by

Sandcrest and GF Gaming. First, it asserted nothing

in the Ethics Code provides that a violation renders a

local government official’s actions’ unofficial. Id. Then

it went on to reason that “[n]othing in the . . . Code provides that when a local government official violates [it],

such violation operates to . . . render[ ] the[m] . . . ‘unofficial.’ ” Id. Further, it conceded that a government official could be subject to potential civil liability and

criminal action under C.R.S. § 24-18-103(2), but backtracked that “nothing in the Code purports to directly

classify such conduct as criminal or unlawful” nor render it unofficial. Id. In view of the foregoing tortured

analysis, the appellate court upheld the district court’s

6

As addressed below, the Tenth Circuit placed on Van Sant

the burden of presenting evidence that the Chaussees had such

personal or private interests, 83 F.4th 1274, rather than accepting its evidence in that regard as true, drawing all justifiable inferences in its favor and presuming its version of any disputed

fact issues to be correct.

17

determination that the three Chaussee town defendants were entitled to LGAA immunity.

But, in determining lawfulness in Sandcrest, it

was only necessary that the challenged actions did not

violate either the hospital system’s or the medical

staff ’s administrative bylaws. In determining lawfulness in GF Gaming, it was noted that the challenged

actions did not violate state statutory provisions. Here,

however, the Tenth Circuit has indicated that to qualify as unlawful so as to defeat LGAA protection the

challenged conduct must violate state criminal law. It

cited no basis for such an assertion, and none exists.

The appellate court’s precedent in this regard cannot

be allowed to stand.

II.

This Court Should Exercise its Supervisory Power to Correct the Tenth Circuit’s

Radical Departures from Long-standing

Supreme Court Precedents.

A. The Tenth Circuit Failed to Adhere to

Bedrock Summary Judgment Principles.

It is well-established Supreme Court teaching

that summary judgment evidentiary standards favor

non-movants, such as Van Sant here. On summary

judgment, a non-movant=s evidence is to be believed

and all justifiable inferences are to be drawn in its favor. Eastman Kodak Co. v. Image Tech. Servs., Inc., 504

U.S. 451, 456 (1992) (citing Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986); Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). Its

18

version of any disputed issue of fact is presumed correct. Id. (citing Arizona v. Maricopa Cnty. Med. Soc’y,

457 U.S. 332, 339 (1982)).7

These are critically important evidentiary standards in determining whether Cameron, Tyler and

Brent Chaussee had beneficial interests in Cadillac

Jack’s RV Park which, under the Colorado Ethics Code,

would constitute “personal or private interest” prohibiting them from voting on the RV ordinances and requiring disclosure to the Calhan Board and PDC. Van

Sant’s evidence was that all three are beneficiaries of

the Video Trust, which is the ultimate owner of Cadillac Jack’s. Op. Br. at 6. The Tenth Circuit acknowledged

that evidence. See Van Sant, 83 F.4th at 1261 (certain

documents list as Video Trust beneficiaries all of Annette Chaussee’s descendants).

But, instead of accepting Van Sant’s evidence to

that effect at face value, the appellate court pointed to

certain other documents containing conflicting statements about the trust beneficiary status. Id. It then

extrapolated that evidentiary dispute into “an alleged

speculative and exceedingly remote contention” not

necessarily constituting a “personal or private interest” such that they were not necessarily prohibited

from voting nor required to make disclosure. Id. at

1273.

7

Even the Tenth Circuit has previously recognized that it

“examine[s] the factual record in the light most favorable to the

party opposing summary judgment.” Kannady v. City of Kiowa,

590 F.3d 1161, 1168 (10th Cir. 2010).

19

Under this Court’s summary judgment evidentiary standards referenced above, the Tenth Circuit

was required to take as true that the three Chaussee

town defendants had beneficial interests in Cadillac

Jack’s. From there, it would have been virtually impossible for the appellate court to contend – as it did, see

id. – that such status as beneficiaries did not constitute

personal or private interests under the Ethics Code.

Logic and common sense alone would suggest the contrary, to say nothing of the Code itself. See, e.g., C.R.S.

§ 24-18-105(2) (a “local government official . . . should

not . . . hold an interest in any business or undertaking

which he has reason to believe may be directly and

substantially affected to its economic benefit by official

action to be taken by an agency over which he has substantive authority”); C.R.S. § 24-18-109(5)(b)(I) (requiring compliance with voting abstention and

disclosure requirements regarding a nonprofit entity

in which an official has a financial interest or from

which he or an immediate family member receives services). Those interests, in turn, disqualified them from

voting on the RV ordinances. Id. § 109(3)(a).

For purposes of ongoing future clarity, this Court

should correct the Tenth Circuit’s failure to adhere to

long-entrenched summary judgment standards.

20

B. The Tenth Circuit Misplaced the Burden

of Proof Regarding LGAA Immunity On

Van Sant.

For at least 46 years now, it has been clear that

parties claiming antitrust immunity bear the burden

of proof in establishing such a defense. City of Lafayette

v. La. Power & Light Co., 435 U.S. 389, 400 (1978)

(“[Claimants’] arguments therefore cannot prevail unless they demonstrate. . . . We now turn to a consideration of whether . . . [they] have made that showing.”).

Thus, it was up to the three Chaussee town defendants

to prove their entitlement to LGAA protection by establishing that when recommending and voting to enact the RV ordinances they were acting both lawfully

and in an official capacity.

The Tenth Circuit, however, flipped the script; it

improperly reversed the burden of proof: “We are not

persuaded that Van Sant has established that the actions of the individual Town Defendants in voting in

favor of the key ordinances were ‘unlawful’ and in turn

‘unofficial.’ ” Van Sant, 83 F.4th at 1273 (emphasis

added). The appellate court attempted to buttress its

position by

conclud[ing] that Van Sant, in responding to

the Town Defendants’ motion for summary

judgment, failed to “bring forward specific

facts showing a genuine issue for trial” as to

whether the individual Town Defendants in

fact violated the Colorado Ethics Code by voting in favor of the challenged ordinances.

21

Id. (quoting Kannady v. City of Kiowa, 590 F.3d 1161,

1169 (10th Cir. 2010)). But, Van Sant needed only to

“bring forward specific facts showing a genuine issue

for trial as to those dispositive matters for which it carrie[d] the burden of proof.” Kannady, 590 F.3d at 1169

(emphasis added). As established above, the burden of

proof regarding immunity was not on Van Sant.

This Court should correct the Tenth Circuit’s misapplication of the burden of proof regarding the defense of antitrust immunity.

C. The Tenth Circuit Employed Pleading

Standards, Rather than Summary Judgment Evidentiary Standards, and Found

Noerr-Pennington Immunity Based on an

Assumption at Odds with the Evidence.

This Court’s judicially-created Noerr-Pennington

doctrine exempts from antitrust coverage joint efforts

by persons seeking to induce government action even

though such efforts may be intended to, and do, have

anticompetitive effects. See, e.g., E.R.R. Pres. Conf. v.

Noerr Motor Freight, Inc., 365 U.S. 127, 136 (1961);

United Mine Workers of Am. v. Pennington, 381 U.S.

657, 660, 670 (1961).

Given the aforementioned “overarching and fundamental policies” embodied in the antitrust laws,

however, such implied (non-statutory) repeals of them

are disfavored. FTC v. Ticor Title Ins. Co., 504 U.S. 621,

636 (1992). “[T]here is a heavy presumption against

implicit exemptions.” Goldfarb v. Va. State Bar, 421

22

U.S. 773, 787 (1975). (emphasis added). The burden is

on those claiming such immunity to demonstrate the

presumption is overcome. See City of Lafayette, 435

U.S. at 399-400 (regarding Noerr-Pennington and Parker [i.e., state action] immunity). Here, however, the

Tenth Circuit did not require defendants to meet that

burden.

The exemption is only available, of course, for actually seeking to influence government. See, e.g., Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572

U.S. 545, 556 (2014) (“defendants are immune from

antitrust liability for engaging in conduct . . . aimed at

influencing decisionmaking by the government”). In

that regard, the appellate court confirmed “the fact

that the Added Defendants . . . denied Van Sant’s factual allegations that they conspired with the Town Defendants. . . .” Van Sant, 83 F.4th at 1276. Yet it

rationalized that did not “preclude [them] from asserting the alternative argument that they are immune

from Van Sant’s antitrust claims under the NoerrPennington doctrine [by] simply assum[ing], without

conceding, the truth of Van Sant’s factual allegations.”

Id. (emphasis added). In other words, they could meet

their evidentiary burden of proof through an assumption.

For that stunning proposition the Tenth Circuit

cited no case authority but relied solely on Fed. R. Civ.

P. 8(d)(3). Rule 8, of course, deals with general rules of

pleading. Subsection (d) addresses, among other

things, pleading alternative statements. Sub-subsection (3) provides that a party may plead inconsistent

23

defenses. Thus, a defense asserted in an answer to a

complaint is not subject to being struck from that

pleading simply because it is inconsistent with some

other defense asserted there. But that was not the

issue here; Van Sant never moved to strike the Noerr

defense from the non-governmental defendants’ answer.

The issue here, rather, was that the non-governmental defendants moved for summary judgment on

the basis of being exempt from the antitrust laws under the Noerr-Pennington doctrine. In doing so, they assumed the burden of proving their entitlement to that

exemption. Lafayette, 435 U.S. at 400. Yet, as the appellate court found, they denied ever seeking to influence

town officials to enact the RV ordinances. The missing

proof cannot be supplied by assuming hypothetically

that they did conspire with the town defendants as the

Tenth Circuit suggested.

This Court should correct both the Tenth Circuit’s

misconflation of pleading in the alternative with the

burden of proving an antitrust immunity defense on

summary judgment, and its hypothetical assumption

of non-existent evidence.

---------------------------------♦---------------------------------

24

CONCLUSION

For the reasons set forth above, the petition for

writ of certiorari should be granted.

Respectfully submitted,

THOMAS P. MCMAHON

Counsel of Record

BENJAMIN P. WIECK

JONES & KELLER, P.C.

1675 Broadway, 26th Floor

Denver, Colorado 80202

(303) 573-1600

tmcmahon@joneskeller.com