Since then, Haluska has retired--under pressure, she claims--and Quinonez has been informed that his job has been eliminated as part of the unit's reduction in force. The two contend that they have solid performance ratings, and that less-qualified people are being kept on. Updyke recently was fired from his full-time Guard job and told that his part-time weekend job with the Guard would be eliminated due to military downsizing.
Ruttenberg had been approved for a promotion to major on May 1. However, in a letter dated April 15, General France informed Ruttenberg that he was removing her name from the promotion list. Among other things, France accused Ruttenberg of making "misstatements of fact," showing disrespect to superior officers and committing "ethical violations."
Last fall, the plaintiffs' attorney requested a preliminary injunction that would prevent the Guard from ousting any more members of their group. Thus far, Judge Matsch has not responded to that request. The judge also has yet to rule on a motion for dismissal filed earlier this month by defense attorneys. That motion claims that the federal court lacks jurisdiction and that the plaintiffs--because they have not yet gone before the Air Force Board for Correction of Military Records--have failed to complete the military's formal complaint process. (Ruttenberg says an appeal to that board would be futile, because it has no power to order that a person be re-enlisted or rehired.)
The defense motion is based on a long list of court cases. Court after court around the country has declared that judges must be careful not to entertain suits that could disrupt relationships between enlisted military personnel and their superiors. In fact, the Congress and the U.S. Supreme Court have long recognized two systems of justice--one for military personnel and one for everybody else.
But just in case those arguments don't prove fruitful, the Guard made a stab at ensuring that its members remain immune from future lawsuits. Guard officers wrote and lobbied for Colorado House Bill 1227, which was introduced this legislative session. The bill, if it had passed as originally written, would have immunized officers and enlisted personnel from being held liable for either civil or criminal acts, so long as the acts were performed in "good faith" and within the scope of state or federal duty.
The bill drew criticism from State Senator Joan Johnson, a Democrat from Adams County. With Ruttenberg's assistance, Johnson drafted an amendment stating that Guard members would not be immune from liability if, in performing the act, they violated state or federal statutes. The amendment was approved but turned out to be a moot point when the Senate killed the bill.
State Senator Jim Roberts, a Republican from Larimer County who co-sponsored the original bill, says he believes the Guard simply wanted the immunity to protect it from possible legal actions when it set up a temporary medical outpost in Denver's inner city earlier this year. Johnson, however, is skeptical. Although she acknowledges that the bill would not have protected the Guard from the lawsuit Ruttenberg and the others already had filed, she says the suit "certainly might have been on the minds of the people who proposed" the legislation. Adds the senator, who serves on the State, Veterans and Military Affairs committee, "I don't trust the Department of Military Affairs."
Johnson says she believes the military must be put on a tighter leash. "They continue to operate under different rules," she says. And if re-elected this fall, Johnson says she hopes to revamp the statute regulating the Colorado National Guard to ensure that commanders are made more accountable.
The majority of the defendants have not yet filed a formal answer to the plaintiffs' complaint. Only attorneys for the Air Force have responded. In their answer, the government lawyers acknowledge that the Air Force should have--but did not--respond to Freedom of Information requests filed by the plaintiffs, some of which were made almost two years ago.
The ball is now in Matsch's court.
Despite everything that's happened, Jesus Quinonez says he still likes the Guard. In fact, he says, he doesn't want to leave. "What has changed is my attitude toward leaders," he says. "I tried to work all my complaints in-house, and all they did was sweep them under the rug. I'm dismayed."
end of part 2
