Where ballot petitions are allowed to be circulated could be shaped by a lawsuit filed by retail giant Costco against the city of Colorado Springs and a local political consultant.
The lawsuit seeks a declaratory judgment saying Costco’s property at 5050 N. Nevada Ave. is not a public forum under the Colorado Constitution, meaning Costco can determine which petitioners can use its property — or whether they can.
The case focuses on whether the city can enforce a trespass ordinance against petition circulators on a property where public money played a role in development.
The Costco in question is located at University Village, which was developed using Tax Increment Financing through the Colorado Springs Urban Renewal Authority. TIF funds are composed of tax money generated by the retail shopping area and were used to fund infrastructure for the commercial and retail center.
‘No governmental presence’
Costco says in its lawsuit, filed in September, that the store and adjacent parking lot are owned and maintained by Costco where the company replaces light bulbs, fixes the asphalt, maintains stop signs and the like for the benefit of its dues-paying members. “There is no governmental presence on Costco’s premises at the 5050 North Nevada Ave. Property whether in the form of police substations, postal offices, military recruiting stations or otherwise,” according to the lawsuit.
In October 2019, employees of a for-profit signature-gathering company came onto the property and refused to leave when asked. When Costco called the Colorado Springs Police Department to enforce the trespass ordinance, officers arrived and told the Costco manager the City Attorney’s Office had told officers the signature gatherers were entitled under Colorado law to be on the property.
In May 2020, Victor’s Canvassing, owned by Republican political operative Daniel Cole, asked Costco if his company could circulate petitions on the property. Costco’s manager said no. Victor’s then asked the City Attorney’s Office for a list of permissible petition-gathering locations; that list included Costco on North Nevada as part of University Village, the lawsuit says. (The list didn’t name Costco specifically, but rather cited the shopping center, according to a CSPD bulletin addressing places where trespassing by petitioners won’t be enforced.)
On June 17, Victor’s sent canvassers to the Costco property where they set up a table to gather signatures. “A Costco employee informed the signature-gatherers that they were not permitted to gather signatures on Costco’s Property and that they were trespassing,” the lawsuit says. Despite being asked to leave, the signature-gatherers refused.
Moreover, the lawsuit says, “Victor’s Canvassing has repeatedly and intentionally physically intruded, or caused others to physically intrude, on Costco’s Property in order to gather signatures for its paying clients.”
Though asked to leave, “Victor’s Canvassing has communicated its intent to continue to intrude upon Costco’s members-only Property in order to engage in its for-profit signature-gathering business.”
The store received “numerous” complaints from its members about the canvassing, which has “adversely affected Costco’s business activity and will continue to do so,” the lawsuit alleges.
The Westminster case
The city based its decision to place University Village on the list of approved petition circulation sites on a 1991 Colorado Supreme Court decision involving Westminster Mall and the Colorado Constitution.
The Westminster case involved a political action group distributing leaflets and soliciting signatures in the common areas of the mall. The state Court of Appeals ruled there was no protected right to do so in the privately owned commercial center.
But the state Supreme Court reversed that decision, ruling, “Within the public spaces of the Mall, Article II, Section 10 [of the state Constitution] protects petitioners’ rights to distribute political pamphlets and to solicit signatures pledging non-violent dissent from the federal government’s foreign policy....”
The court noted while the mall prohibited solicitation of signatures and distribution of leaflets, it did accommodate the county’s voter registration drives, a salute to U.S. presidents display, sale of Girl Scout cookies and a rent-free police substation.
Besides two to four city police officers patrolling the mall during public hours, “certain street and drainage improvements valued at over two million dollars were acquired by the City from the Company. This purchase was financed under the City’s bond authority,” the Supreme Court noted.
“In sum, the financial participation of the City in the Mall’s progress, the arrangements with the City police substation, and the active presence of other governmental agencies in the common areas of the Mall, constitute governmental involvement in the operation of the Mall,” the court noted.
Thus, it concluded the mall’s “open and public areas ... effectively function as a public place,” and that mall owners couldn’t restrict distribution of political pamphlets or signature gathering in the mall’s common areas without violating the state Constitution.
The involvement of public money in developing University Village would explain why the city named the store as a public forum while citing Douglas Bruce, author of the Taxpayer’s Bill of Rights, as he tried to gather signatures outside a Costco store located east of Powers Boulevard in 2009, for trespassing. CSURA was not involved in that commercial development. Bruce was later acquitted.
Other places listed in the CSPD bulletin, dated July 17, 2020, as not subject to trespass enforcement due to “sufficient government relationships,” says Lt. Jim Sokolik, include Chapel Hills and The Citadel malls, First & Main Shopping Center, The Broadmoor World Arena and The Promenade Shops at Briargate.
Petitioners also are allowed on public property, the bulletin says, such as the 4th Judicial District Courthouse outside forum, state Division of Motor Vehicles locations, the Pioneers Museum gazebo and public forum area, public libraries and City Hall.
Victor’s Canvassing declined to comment on the lawsuit or how being barred from Costco and similar places could impede its operations. Nor would it reveal what ballot measure petitions it circulated on Costco property.
In its answer to the suit, Victor’s cites the state Constitution’s advocacy for the First Amendment of the U.S. Constitution, which guarantees the right to free speech, and disputes whether the company caused Costco’s damages, yet unproven.
The city also declined to comment. It said in a motion to dismiss that the city didn’t take any action affecting Costco’s rights, status, or legal relations, and Costco has failed to specify an “injury” or demonstrate any harm allegedly suffered.
In a footnote in its motion, the city says, “CSPD’s general procedure dictates that individuals may not engage in petition-gathering activities on private property if the property owner objects. However, when sufficient government relationships exist which connect public monies to private interests — as is the case with University Village Shopping Center that received tax incentive financing money ... — then CSPD officers may not enforce owners’ trespass notices against petition gatherers.”
It’s not known when a judge will rule on the city’s motion.