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Judge dismisses Big City Coffee suit against Boise State & Tromp, but allows arguments to move ahead against three administrators

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An Ada County judge handed down decisions in the case of Big City Coffee versus Boise State University last week, with each side notching wins and losses.

On April 22, Fourth District Judge Cynthia Yee-Wallace ruled parts of the coffee shop’s lawsuit against Boise State could proceed and dismissed others. She dismissed allegations against the university and President Marlene Tromp but allowed Big City to continue bringing a case against three high-level administrators. 

[One suit dropped, another started: Legal battle over homeless encampment/protest near Statehouse shifts]

This ruling is the latest in the court case that began with a $10 million tort claim from Big City Coffee owner Sarah Jo Fendley against Boise State last year. The claim alleges the university and top administrators violated her FirstFifth, and Fourteenth Amendment rights, the Idaho Consumer Protection Act, and interfered with her contract with campus food vendor Aramark.

The suit follows the closure of the Big City Coffee satellite location on campus. The Albertsons Library coffee shop closed after some students objected to the business’ use of the Thin Blue Flag at its downtown location and its support of law enforcement after Black Lives Matter protests broke out worldwide following the death of George Floyd in June 2020. 

Boise State filed a motion to discuss the case in its entirety in November, and oral arguments were held in January. After last week’s decision about what parts of the case can move ahead and what cannot, Fendley’s attorney Michael Roe will have until May 27 to file an amended complaint to move the case ahead. Boise State must respond to the new complaint by June 24. 

Roe did not respond to requests for comment by the deadline for this story. BSU spokesperson Mike Sharp told BoiseDev the university does not comment on pending litigation.

Who can be sued, and who can’t?

Dr. Marlene Tromp
Boise State University President Dr. Marlene Tromp. Courtesy Boise State

The case named several defendants, including the university, Tromp, Vice President for Student Affairs and Enrollment Management Leslie Webb, Vice President for University Affairs and Chief of Staff Alicia Estey, and Vice President for Equity Initiatives Francisco Salinas. 

Yee-Wallace dismissed claims for monetary damages against Boise State itself and the administrators because they cannot be sued for monetary damages in their official capacities. The Eleventh Amendment gives governments immunity from certain lawsuits unless they waive their immunity. 

“This court finds that Boise State is an arm of the state and is therefore not a ‘person’ that can be sued,” Yee-Wallace wrote. 

L-R: Alicia Estey, Francisco Salinas and Leslie Webb. Courtesy Boise State

The judge also dismissed Tromp from the suit in all capacities. Yee-Wallace found several of Big City’s allegations Tromp didn’t pass muster. The allegations included that Tromp is “fully committed to the social justice movement,” that activists sent her a letter opposing Fendley’s support of police and that she placed calls to Boise Mayor Lauren McLean and BPD Chief Ryan Lee in an attempt to silence Fendley’s supporters. Yee-Wallace said these allegations don’t prove Tromp was involved in any potential violations of Fendley’s rights to free speech. 

“However, plaintiffs’ arguments and allegations are insufficient to state a claim against Tromp because there are no allegations that could be construed as Tromp having either participated in or caused the alleged constitutional violations at issue,” the ruling read. 

[BPD officer files claim against city after he said Chief Ryan Lee injured him]

The judge wasn’t totally convinced of the merits of the arguments against Webb, Estey, or Salinas either. But, Yee-Wallace said an October 2020 meeting Webb presided over could be found to be retaliatory in response to Fendley’s protected freedom of speech.  The judge said Fendley was told the university would like to part ways with Big City one day after Fendley defended her support of law enforcement and her business on social media.

“Nonetheless, given the temporal proximity between the allegations in the complaint and the October 22 meeting, the court cannot say the plaintiffs have failed to state a claim upon which relief can be granted as to court one at this point in time,” the ruling said. 

Big pieces of suit dismissed 

Big City Coffee cited several laws and pieces of the Idaho and U.S. Constitution in the initial complaint it says Boise State violated, but not all of them held water, according to the judge.

First, Yee-Wallace dismissed claims Boise State violated Fendley’s Fifth Amendment rights because these protections for due process to life, liberty, and property only protect individuals from the federal government, not from other individuals or organizations. Because the federal government is not involved in this case, this portion was thrown out. 

The complaint also accused Boise State of committing “fraud by omission” by not informing Fendley of a growing “firestorm” on campus. Fendley’s claim said some students were against her support of law enforcement and her engagement to Kevin Holtry, a retired police officer who uses a wheelchair due to an injury he sustained on duty. Yee-Wallace found Big City Coffee failed “to plead even the basic facts” to prove the three administrators were aware of promises made to Fendley by another university employee or their duty to disclose opposition to the coffee shop from some students on campus. 

The judge was also skeptical of the amount of evidence provided about how widespread the opposition was or its nature. 

“Moreover, even if the complaint did allege the source of the duty requiring defendants to disclose that a ‘firestorm’ was brewing on campus, plaintiffs must do more than simply call the material information a ‘firestorm,’” Yee-Wallace wrote. 

Big City Coffee’s allegations against Boise State for violating the Idaho Consumer Protection Act also got the axe. Yee-Wallace found Fendley and her attorney failed to show how this issue falls under the law, what Big City Coffee does to qualify as “trade or commerce” and how the university’s conduct was “misleading, false, deceptive or unconscionable to consumers.” She also dinged Big City Coffee for resting several of their allegations on groups or individuals not named in the suit and referencing unnamed groups like “BSU representatives” or “radical elements of the BSU campus.”

“Plaintiffs do not set forth basic facts and information that comprise the ‘potential for controversy’ discussed in paragraph 45 of the complaint, together with how such facts are attributable to each Defendant individually,” the ruling found. 

Allegations of unfair treatment allowed to stand 

It’s not just Big City Coffee’s First Amendment claims moving forward. 

Yee-Wallace also allowed Fendley to continue to bring forward her claims that Boise State violated her rights to equal protection of the law under the Fourteenth Amendment. In its opposing brief, Boise State argued this should be dismissed because it hung on Big City Coffee’s freedom of speech and didn’t have a separate basis, but the judge disagreed. 

The ruling found Big City Coffee could argue its Fourteenth Amendment rights were violated because the business argued that not only was Fendley retaliated against for their speech, but the business was also treated differently than other contractors and vendors on campus. 

Yee-Wallace said it was “premature” to dismiss this part of the suit. 

Margaret Carmel - BoiseDev Sr. Reporter
Margaret Carmel - BoiseDev Sr. Reporter
Margaret Carmel is a BoiseDev reporter focused on the City of Boise, housing, homelessness and growth. Contact her at [email protected] or by phone at (757)705-8066.

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