A Denver judge has dismissed a lawsuit brought by a group of police officers seeking to challenge a mandate requiring city employees to get vaccinated against COVID-19 by Sept. 30, saying they did not follow the proper process to appeal the order administratively before bringing their challenge to court.
District court Judge Shelley Gilman tossed the case for lack of subject matter jurisdiction after a half-hour hearing Wednesday morning. She said the group of officers needed to appeal the Aug. 2 vaccine mandate to Denver's Board of Public Health and Environment within 30 days of its issuance.
The plaintiffs filed the lawsuit Thursday.
"Any allegations regarding timing were brought on by the plaintiffs themselves," Gilman said when she issued her ruling.
The group of seven Denver police officers, represented by attorney Randy Corporon, sought to challenge the city's order requiring vaccination for city employees and workers in high-risk occupations and settings, claiming it went beyond its authority and did not follow a proper rulemaking process under the Administrative Procedure Act. The city has relied on an emergency declaration issued by Mayor Michael Hancock at the beginning of the pandemic that needs to be properly renewed by the City Council as required, Corporon argued.
Corporon told reporters after the hearing he plans to follow Gilman's instructions and file an administrative appeal to the Board of Public Health and Environment.
Denver's code requires filing an appeal of a DDPHE order within 30 days of its issuance, "which means we darn well better file something tomorrow," he said.
But Corporon added he has little optimism about getting a ruling from the board favorable to his clients.
"This is not a medical issue anymore. This is a highly politicized issue. ... But the judge said we've got to try."
Corporon is a member of the Republican National Committee and hosts a weekly radio show on KNUS. He also founded the Arapahoe County Tea Party. He represented former state House Minority Leader Patrick Neville and conservative commentator Michelle Malkin in their lawsuit against Gov. Jared Polis challenging the statewide mask order.
If Corporon and his clients lose an administrative appeal, they could bring their case back to district court and have a full hearing.
The officers suing include Jonathan Christian, Dewayne Rodgers, Bart Stark, Rich Ziegler, Nick Elliott, David Curtis and Les Tucker. Their lawsuit named the DDPHE and executive director Bob McDonald, Hancock and police Chief Paul Pazen in their official capacities.
Hancock said in a statement Wednesday that the vaccine mandate "is about saving lives, and we’re grateful to the 94 percent of city employees who are complying with the vaccine public health order. Our city employees have always put service to their community first, and they have demonstrated that once again by getting vaccinated.”
A mayoral spokesperson said in an email Friday 82% of the Denver Police Department has been vaccinated.
“Today Denver joins the growing list of cities successfully defending its vaccine mandate. For over 100 years, the courts have recognized the authority of local governments to protect public health and safety through vaccine mandates because vaccines save lives," said city attorney Kristin Bronson in a statement.