Case 1:12-cv CMA-MJW Document 57 Filed 06/22/12 USDC Colorado Page 1 of 15 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

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1 Case 1:12-cv CMA-MJW Document 57 Filed 06/22/12 USDC Colorado Page 1 of 15 Civil Action No. 12-cv-370-CMA-MJW IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CITIZEN CENTER, a Colorado nonprofit corporation, v. Plaintiff, SCOTT GESSLER, in his official capacity as Colorado Secretary of State, SHEILA REINER, in her official capacity as Mesa County Clerk & Recorder SCOTT DOYLE, in his official capacity as Larimer County Clerk & Recorder PAM ANDERSON, in her official capacity as Jefferson County Clerk & Recorder HILLARY HALL, in her official capacity as Boulder County Clerk & Recorder JOYCE RENO, in her official capacity as Chaffee County Clerk & Recorder, TEAK SIMONTON, in her official capacity as Eagle County Clerk & Recorder, Defendants. COUNTY CLERKS RESPONSE TO PLAINTIFF S EMERGENCY MOTION Defendants Mesa County Clerk & Recorder Sheila Reiner, Larimer County Clerk & Recorder Scott Doyle, Jefferson County Clerk & Recorder Pam Anderson, Boulder County Clerk & Recorder Hillary Hall, Chaffee County Clerk & Recorder Joyce Reno, and Eagle County Clerk & Recorder Teak Simonton (collectively the Clerks ), by and through their respective counsel, hereby respond to the Emergency Motion of Citizen Center for Magistrate s Reconsideration and Stay Pending Reconsideration of Part of the Court s June 4 Scheduling Order (the Motion ), [Doc. 46], 1 as follows: 1 On June 18, 2012, Plaintiff filed an Objection to Part of Magistrate s June 4 Scheduling Order, appealing to the District Court the same issue is raised in the Motion. [See Doc. 54]. It is unclear if the objection moots the Motion, but Defendants nevertheless submit this response to comply with the Court s deadline. [See Doc. 48].

2 Case 1:12-cv CMA-MJW Document 57 Filed 06/22/12 USDC Colorado Page 2 of 15 INTRODUCTION Plaintiff characterizes its Motion as a request for reconsideration of that part of the Scheduling Order entered by United States Magistrate Judge Michael J. Watanabe that enjoins Plaintiff and its individual members from submitting Colorado Open Records Act ( CORA ) requests to the Defendants during discovery in this case. [Motion at p.1]. That is not what Judge Watanabe ordered, and Plaintiff s overstatement of the scope of the ruling, along with its exaggerated accounts of the anticipated impact of the ruling, does nothing to demonstrate the impropriety of refusing to allow Plaintiff or its members to utilize CORA to get around the discovery limits imposed in this case. 2 Discovery orders are reviewed for an abuse of discretion. See Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1520 (10th Cir. 1995). Plaintiff fails to demonstrate that Judge Watanabe abused his discretion with respect to the discovery order at issue here, and as a result the Motion should be denied. ARGUMENT A. Plaintiff s Mis-States Judge Watanabe s Ruling The Scheduling Order entered by Judge Watanabe nunc pro tunc June 4, 2012, 2 Plaintiff s mis-statement of the Court s ruling goes beyond the Motion, and extend to its communications with its members, [see Motion at Exhibit 1, p.1], and interviews with the media. [See Lawsuits May Ensue Over Ballot Access Bill, The Colorado Statesman, 6/15/2012, lawsuits-may-ensue-over-ballot-access-bill (attached hereto as Exhibit A)]. Plaintiff s communications with the media also appear to violate this Court s admonishment that this case should not be tried in the press. [See id.; see also Podcast of Radio Interview of Marilyn Marks and Robert McGuire, 6/18/2012, available on-line at 2

3 Case 1:12-cv CMA-MJW Document 57 Filed 06/22/12 USDC Colorado Page 3 of 15 provides that Plaintiff Citizen Center and its individual members shall refrain during discovery in this case from submitting Colorado Open Records Act ( CORA ) requests to each of the Defendants for inspection and copying of public records that are otherwise obtainable using discovery in order to prevent Plaintiff from using CORA as a means to exceed the discovery limits included in this Order. [Doc. 53 at 8(d)(2) (emphasis added)]. Under its plain language, this ruling does not prohibit Plaintiff or its members from submitting any CORA requests, but instead only prohibits them from using CORA as a means to obtain discovery in excess of the amounts permitted by this Court s Scheduling Order, thereby gaining an unfair advantage over Defendants, who do not have the parallel ability to submit CORA requests to Plaintiff. The Motion never attempts to address the inequity of permitting Plaintiff to submit CORA requests to obtain documents available through discovery, and nowhere in the Motion or any of its supporting declarations does Citizen Center disavow any intent to utilize CORA requests to exceed the discovery limits set by this Court. In short, Plaintiff appears to manifest the intent to do just what Judge Watanabe s order seeks to avoid, abuse of the discovery process in this case. 3 Contrary to Plaintiff s exaggerated account, the order in question does not prohibit Plaintiff s from obtaining any information from the Defendants in this case. 3 Plaintiff complains that Defendants are only assuming that the numerous CORA requests they have received in the weeks prior to and following the filing of the Complaint in this case were from Citizen Center members. [See Motion at p.8]. However, Plaintiff does not deny that these CORA requests came from its members, and Plaintiff has not yet provided a list of its members. 3

4 Case 1:12-cv CMA-MJW Document 57 Filed 06/22/12 USDC Colorado Page 4 of 15 Rather, the order requires only that such efforts be pursued through discovery rather than through CORA requests that the Court cannot monitor and control. The Motion does not argue that the discovery limits imposed by the Court are insufficient to satisfy Plaintiff s need to obtain information in relation to this case, and in fact Plaintiff offers no objection to the discovery limits contained in the Scheduling Order. To any extent the existing discovery limits prove insufficient to satisfy Plaintiff s need for information to prosecute its claims, it can move the Court for an expansion of the discovery limits upon a showing of good cause. [See Fed. R. Civ. P. 16(b)(4)]. As this Court noted in issuing the disputed ruling, the Federal Rules of Civil Procedure must be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding. Fed. R. Civ. P. 1. Allowing Plaintiff to ignore the Court s reasonable and appropriate discovery limits by submitting CORA requests, or soliciting members to make such requests, thwarts this rule by allowing Plaintiff to impose expenses on Defendants while itself avoiding any expense beyond that contemplated under the Court s discovery limits. This approach also provides Plaintiff an unfair advantage in this litigation, allowing it limitless access to documents from Defendants while Defendants are limited to the discovery permitted under the Scheduling Order. The Motion offers no hint as to how the Court should balance what Plaintiff claims as an unlimited entitlement to use CORA against the discovery limits that constrain Defendants. B. Plaintiff s First Amendment Rights to Freedom of Speech and Association and to Petition the Government Are Not Infringed Plaintiff argues that restricting its ability to submit CORA requests would violate 4

5 Case 1:12-cv CMA-MJW Document 57 Filed 06/22/12 USDC Colorado Page 5 of 15 its First Amendment rights to freedom of speech and association and to petition the government. [See Motion at p.2-3]. Plaintiff offers no authority for the proposition that the submission of a CORA request constitutes protected speech or protected association under the First Amendment. To the contrary, the Tenth Circuit notes that no general First Amendment right to access government records exists. Smith v. Plati, 258 F.3d 1167, 1178 (10th Cir. 2001) ( It is well-settled that there is no general First Amendment right of access to all sources of information within governmental control. ) (citations omitted); see also Houchins v. KQED, Inc., 438 U.S. 1, 15 (1978) ( Neither the First Amendment nor the Fourteenth Amendment mandates a right of access to government information or sources of information within the government's control. ); Lanphere & Urbaniak v. Colorado, 21 F.3d 1508, 1511 (10th Cir. 1994) ( There is no constitutional right, and specifically no First Amendment right, of access to government records. ). Instead, access to public documents is a right created by state statute, and the statute creating the right also imposes specific limitations on that right. Specifically, CORA provides at C.R.S : (1) The custodian of any public records shall allow any person the right of inspection of such records or any portion thereof except on one or more of the following grounds or as provided in subsection (2) or (3) of this section:... (c) Such inspection is prohibited by rules promulgated by the supreme court or by the order of any court. (Emphasis added). 5

6 Case 1:12-cv CMA-MJW Document 57 Filed 06/22/12 USDC Colorado Page 6 of 15 Under the plain language of CORA, the right to obtain access to documents can be limited by the order of any court. [See id.] Plaintiff argues that this provision only allows a court to issue an order prohibiting a specific inspection upon a request from a records custodian under C.R.S (6). [See Motion at p.5]. The statute contains no such limitation, and in fact, (6), allowing a custodian to seek a court order determining whether a record is public under CORA, does not refer back to (1)(c). Plaintiff cites to People in Interest of A.A.T., 759 P.2d 853 (Colo. App. 1988), for the expansive argument that federal courts are somehow precluded from adopting appropriate discovery limitations in pending matters. [See Motion at p.5]. Such a proposition is without merit. The issue in A.A.T was whether a dispute over a CORA request could be resolved by means of a motion filed in an ongoing state action for termination of parental rights. The Colorado Court of Appeals held that it could not, and that the disputes had to be resolved by filing a separate independent action in the appropriate district court. A.A.T. did not address the propriety of a federal magistrate judge adopting discovery limitations in federal proceedings that would lead to an equitable application of discovery limits to both parties. This case in no way restricts a federal court s ability to control the litigation and enforce discovery limits in a case pending before it. To adopt the expansive reading of this case proposed by Plaintiff 6

7 Case 1:12-cv CMA-MJW Document 57 Filed 06/22/12 USDC Colorado Page 7 of 15 would eliminate the application of Fed. R. Civ. P. 16 and C.R.S (1)(c) to all government defendants in federal court cases. 4 Nothing in CORA bars a federal court from enforcing its own discovery limits, and by filing this lawsuit Plaintiff and its members voluntarily subjected themselves to those limits. Plaintiff should not be permitted to make an end run around this Court s discovery limits by requesting documents under CORA that could be obtained through discovery, thereby providing themselves with an unlimited number of requests for production of documents while Defendants alone are subjected to discovery limits. C. Plaintiff s Claims of Harm Are Based on an Unreasonable Reading of the Court s Ruling Plaintiff also attempts to demonstrate that the Court s order will cause irreparable harm to it and its members, relying on declarations from several of its members. While Defendants will not attempt to make a line by line assessment of each of the seven declarations, a few examples demonstrate that Plaintiff intentionally adopts an overly broad and patently unreasonable interpretation of the Court s order to create an illusion of harm that does not exist. 4 Although not argued in the Motion, Plaintiff s objection to the same discovery ruling, filed June 18, 2012, contains the additional argument that C.R.S (5) specifically guards against discovery abuse by disallowing recovery of attorney fees when a litigant sues to obtain records from a custodian it could have obtained through discovery. [See Doc. 54 at p.6]. Contrary to Plaintiff s conclusory assertion, this provision does nothing to prevent discovery abuse, as it comes into play only if the litigant files suit to obtain the requested records, and provides no disincentive for a litigant to submit a CORA request. If anything, this provision highlights the legislature s acknowledgement that CORA should not be used to obtain information that can be obtained through discovery. Regardless, however, C.R.S (5) likewise does nothing to preclude a federal court s ability to enforce its discovery limits. 7

8 Case 1:12-cv CMA-MJW Document 57 Filed 06/22/12 USDC Colorado Page 8 of 15 Citizen Center founder Marilyn Marks asserts that a member of Citizen Center employed by the State of Colorado, who frequently accesses public information from the Secretary of State s office as a required part of the member s professional job responsibilities, fears being unable to perform his or her job functions as a result of this Court s order. [Motion at Exhibit 2, 23; see also id. at 24 (claiming another Citizen Center member running for elected office will be unable to access public information from Defendants in the course of official duties )]. The disputed order prohibits CORA requests to Defendants that are otherwise obtainable through discovery, and no reasonable person would interpret the order as prohibiting a government official from reviewing public information in the course of their job. Ms. Marks also claims that the involvement of Citizen Center members in the oversight of the Saguache County primary election is hampered as a result of this Court s discovery ruling. [See Motion at Exhibit 2, 9-10]. Defendants are able to perceive no restriction on Plaintiff s activities in relation to the oversight of elections conducted by a county that is not even a party of this lawsuit. Under this category, Ms. Marks also claims to have cancelled a meeting with the Deputy Secretary of State Staiert to discuss this topic. [Id. at 10]. On its face this Court s Order restricts CORA requests to Defendants that are otherwise obtainable through discovery, it does not prohibit Citizen Center or any of its members from meeting with any public official to discuss any topic. Other topics Ms. Marks claims cannot be explored under the disputed order likewise have no apparent bearing on the issues in this case. [See id. at 11, 18, 27, 8

9 Case 1:12-cv CMA-MJW Document 57 Filed 06/22/12 USDC Colorado Page 9 of 15 28]. Much of the remainder of Ms. Marks s proclamation of harm consists of conclusory assertions that Plaintiff requires access to general categories of public records to participate in various projects in which it is involved, without stating specifically what documents are needed or why those documents would be discoverable in this case. [See Motion at Exhibit 2, 11, 13, 14, 15, 16, 17]. 5 The remaining declarations attached to the Motion suffer from the same deficiencies as Ms. Marks s declaration. [See Motion at Exhibits 3 to 8]. Notably, despite proclaiming its Motion an emergency and despite asserting an expectation of a nearly immediate reduction in membership, [Motion at Exhibit 2, 30], Plaintiff does not submit any evidence that any member actually withdrew from membership in Citizen Center as a result of the Court s ruling. Even ten days after filing the Motion, when it filed an objection to Judge Watanabe s ruling to the District Court Judge, Plaintiff did not name a single individual who withdrew from membership in Citizen Center, and instead merely attaches the same conclusory and speculative declarations attached to the Motion. [See Doc. 54]. Plaintiff also argues that the discovery order is overly broad because it reaches members of Citizen Center who are themselves not parties to this action, ignoring the fact that Citizen Center members are parties to this action by nature of their membership in that organization, along with the fact that Plaintiff relies on its members 5 Even with respect to her own personal work in other court cases involving CORA requests, Ms. Marks fails to identify a single document she would be unable to access as a result of this Court s ruling and needs in order to prosecute her cases. [See Motion at Exhibit 6, 3-9]. 9

10 Case 1:12-cv CMA-MJW Document 57 Filed 06/22/12 USDC Colorado Page 10 of 15 in order to try and establish standing in this case. [See Doc. 37 at 6, , , , , , , , 148, , , 165, 168, 170]. If the requested limitation were applied solely to Plaintiff itself, nothing would prevent it from commissioning its members to submit CORA requests that it could not submit on its own behalf. This would result in the same inequities discussed above, and fairness dictates that Plaintiff should not be permitted to use its members to avoid this Court s discovery limits. 6 D. The Court s Ruling Does Not Constitute an Injunction Plaintiff argues that the Court s restriction on the use of CORA to exceed discovery limitations constitutes an injunction that cannot be entered by a Magistrate Judge and that requires Defendants to satisfy the standards for injunctive relief. [See Motion at pp.4, 6-9]. Under Plaintiff s theory, any court s limitation on the number of written discovery requests or the number of depositions would constitute an injunction prohibiting additional discovery requests or depositions, and would require the opposing party to demonstrate the need for injunctive relief prohibiting such discovery. This position is simply untenable. This Court s enforcement of discovery limits is no more an injunction than any limitation on discovery imposed by any court, and Plaintiff offers no authority for its attempted conversion of a simple discovery order into an injunction. 6 Plaintiff appears to believe that, despite its filing of a public lawsuit against Defendants, and despite its reliance on its individual members to establish its standing, those members should be permitted to remain anonymous. [See Motion at Exhibit 2, 5, 20-22]. Plaintiff even appears to believe that its members should not be subjected to discovery, as it failed to identify in its initial disclosures the individual members it will rely on to establish standing in each of the six counties being sued. 10

11 Case 1:12-cv CMA-MJW Document 57 Filed 06/22/12 USDC Colorado Page 11 of 15 In support of the argument the disputed ruling constitutes an injunction, Plaintiff cites MAI Basic Four, Inc. v. Basis, Inc., 962 F.2d 978, 981 (10 th Cir. 1992), for the proposition that an order prohibiting the filing of other actions in federal court constitutes an injunction. [See Motion at p.6]. The order at issue here does not prohibit the filing of other actions in federal court, and instead prohibits Plaintiff from using CORA to avoid this Court s discovery limits. Plaintiff mis-cites United States v. McVeigh, 157 F.3d 809, 813 (10 th Cir. 1998), as holding that dissolution of an interlocutory order prohibiting the exchange of information in discovery is injunctive in nature. [See id. at p.6]. McVeigh did not review an order prohibiting the exchange of information in discovery, but instead reviewed an order prohibiting the public release of information obtained in the court proceedings. 7 Neither case cited by Plaintiff is on point, and Plaintiff cites to no authority for the proposition that an order requiring parties to comply with a federal court s discovery limits constitutes an injunction. E. This Court Should Not Stay its Decision Pending a Ruling on the Motion Plaintiff argues that the Court should stay its decision relating to CORA requests pending a ruling on the Motion. The obvious result of such a stay would be to encourage Plaintiff and its members to immediately bombard Defendants with CORA requests on any topic even remotely related to this litigation in the event that they might 7 Plaintiff also cites McVeigh for a 3-part test, which Plaintiff claims is used to determine whether an order constitutes an injunction. [See Motion at p.6]. In reality, the 3-part test set forth in McVeigh is used to determine whether an order having the practical effect of an injunction is subject to interlocutory appeal under 28 U.S.C. 1292(a)(1). United States v. McVeigh, 157 F.3d 809, 813 (10th Cir. 1998). 11

12 Case 1:12-cv CMA-MJW Document 57 Filed 06/22/12 USDC Colorado Page 12 of 15 in future be prohibited from using CORA to avoid the Court s discovery limits. By this means, the intent of the order would be thwarted even if it were eventually re-issued. To provide fair consideration to Defendants position, the prohibition on CORA requests must be left in place until the Court decides the Motion. CONCLUSION Defendants never requested that Plaintiff or its members be prohibited from doing their advocacy work. All that Defendants requested, and all that this Court ordered, was that Plaintiff be prohibited from using CORA to avoid the discovery limitations in this case. Plaintiff fails to explain why it cannot use discovery to obtain the information it needs in this case, and it cannot establish the harm that may result from the ruling by adopting an unreasonably broad interpretation of the ruling. Plaintiff fails to demonstrate any abuse of discretion in this ruling, and as a result the Motion should be denied. WHEREFORE, the Clerks respectfully request that this Court deny the Emergency Motion of Citizen Center for Magistrate s Reconsideration and Stay Pending Reconsideration of Part of the Court s June 4 Scheduling Order, and enter all such additional relief as the Court deems just and appropriate. 12

13 Case 1:12-cv CMA-MJW Document 57 Filed 06/22/12 USDC Colorado Page 13 of 15 Respectfully submitted this 22 nd day of June, ELLEN G. WAKEMAN JEFFERSON COUNTY ATTORNEY BEN PEARLMAN BOULDER COUNTY ATTORNEY By: s/ Writer Mott Writer Mott, David R. Wunderlich, 100 Jefferson County Pkwy, Ste Golden, Colorado By: s/ David Hughes David Hughes Deputy County Attorney 1325 Pearl St. Boulder, Colorado Telephone: Attorneys for Defendant Pam Anderson Attorney for Defendant Hillary Hall HALL & EVANS, LLC s/ Gillian Dale By: Thomas J. Lyons Gillian Dale 1125 Seventeenth Street, Ste. 600 Denver, Colorado Attorneys for Defendant Teak Simonton JENNIFER A. DAVIS CHAFFEE COUNTY ATTORNEY s/ Jennifer A. Davis By: Jennifer A. Davis 104 Crestone Ave. Salida, Colorado Attorney for Defendant Joyce Reno Bryan R. Treu Eagle County Attorney 500 Broadway Eagle, Colorado Attorneys for Defendant Teak Simonton 13

14 Case 1:12-cv CMA-MJW Document 57 Filed 06/22/12 USDC Colorado Page 14 of 15 MAURICE LYLE DECHANT MESA COUNTY ATTORNEY GEORGE J. HASS LARIMER COUNTY ATTORNEY s/ Maurice L. Dechant By: Maurice Lyle Dechant David Frankel Andrea Nina Atencio P.O. Box 20, Grand Junction, Colorado Attorneys for Defendant Sheila Reiner By: s/ David P. Ayraud David P. Ayraud William G. Ressue Assistant County Attorneys 224 Canyon Aave., Ste. 200 Ft. Collins, Colorado Attorneys for Defendant Scott Doyle 14

15 Case 1:12-cv CMA-MJW Document 57 Filed 06/22/12 USDC Colorado Page 15 of 15 CERTIFICATE OF SERVICE I hereby certify that on this the 22 nd day of June, 2012, I filed the foregoing COUNTY CLERKS RESPONSE TO PLAINTIFF S EMERGENCY MOTION via the U.S. District Court ECF/PACER system, which will send an electronic copy via to the following: Robert A. McGuire, Esq Market St., Ste. 202 Denver, Colorado robert.a.mcguire@gmail.com Maurice G. Knaizer Leann Morrill Colorado State Attorney General s Office Public Officials Unit 1525 Sherman Street, 7 th Floor Denver, Colorado maurie.knaizer@state.co.us leeann.morrill@state.co.us Counsel for Defendant Scott Gessler s/ Martha Fiser, Legal Secretary Thomas J. Lyons Gillian Dale HALL & EVANS, L.L.C Seventeenth St., #600 Denver, CO Phone: daleg@hallevans.com lyonst@hallevans.com 15

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