By Shelly Bradbury
The Denver Post
DENVER — A Denver District Court judge dismissed an 11th-hour challenge to Denver’s COVID-19 vaccine mandate Wednesday, a day before the city’s edict requires all city employees and some key private-sector workers to submit proof of vaccination.
District Court Judge Shelley Gilman found that the court did not have the jurisdiction to hear the issue because the police officers who sued to block the mandate did not first file an administrative complaint and exhaust administrative remedies, a requirement except under certain exceptions, like if following the administrative procedures would be obviously futile.
“The court here finds it lacks subject matter jurisdiction to address the issue,” she said. “While there have been allegations that it would be futile, the court would find the plaintiffs have failed to establish beyond a reasonable doubt that futility.”
Seven Denver police officers last week filed a lawsuit against Mayor Michael Hancock and other officials to try to block the mandate, asking Gilman to nullify the order on the grounds that the city exceeded its authority. Hancock issued the vaccine mandate Aug. 2 for all city employees, citing rising COVID-19 case numbers and the fast-spreading delta variant.
The mandate also covers some workers employed by private businesses and organizations, including people who work in health care, at correctional facilities, and at public and private schools.
Randy Corporon, attorney for the officers, said after the case was dismissed Wednesday that he will pursue an administrative complaint with the Denver Department of Public Health and Environment, and that he expected to file that complaint Thursday.
“This is not a medical issue anymore, this is a highly politicized issue,” Corporon said. “So I have very little optimism that we’ll see anything favorable out of the department of health, but the judge said we’ve got to try.”
If that administrative complaint fails, he’ll once again have the option to file a lawsuit.
“However long it takes, we’ve got to right this wrong, even if it’s only in a court of law,” he said.
Both Gilman and an attorney for the city, Joshua Roberts, noted the late timing of the officers’ challenge.
“This order was issued on Aug. 2, plaintiffs have had adequate time to pursue an administrative remedy, they have chosen not to do so,” Roberts said. He declined to comment after the hearing.
The vast majority of Denver city employees already are vaccinated and have already submitted proof of vaccination, city data shows.
As of Friday, about 82% of Denver Police Department staff and 78% of Denver Sheriff Department staff had presented proof of vaccination. The Denver Fire Department has a vaccination rate of 92%, on par with the overall vaccination rate of 92% for all city employees.
Starting Friday, employees who refuse to be vaccinated “under any circumstances” will face being fired, Jacqlin Davis, a spokeswoman for the Denver City Attorney’s Office, said in a statement Wednesday. Other employees not in compliance can expect to receive 10-day unpaid suspensions followed by termination if they are still out of compliance at the end of the suspension.
“Minor violations by employees who are close to being fully vaccinated will not result in discipline,” she wrote in the statement.
At the start of the hearing Wednesday, Corporon was the only person in the courtroom not wearing a mask, despite the court’s mask mandate. He donned a blue medical mask after Gilman instructed him to wear it, but when he stood up to address the court, he leaned on a podium and paused for a long moment.
“I’m sorry, your honor, I’m a little lightheaded,” he said.
He was allowed to pull his mask down for the rest of the hearing.
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