Case 1:12-cv CMA-MJW Document 54 Filed 06/18/12 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 54 Filed 06/18/12 USDC Colorado Page 1 of 15 Civil Action No.: 12-cv 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. OBJECTION TO PART OF MAGISTRATE S JUNE 4 SCHEDULING ORDER Citizen Center, pursuant to Fed. R. Civ. P. 72 and 28 U.S.C. 636(b)(1)(c), respectfully objects to that part of the scheduling order, (Dkt. #53, at 21 8.d.2.), that enjoins Plaintiff and all of its individual members from making public records requests to any of the Defendants for public records that are otherwise obtainable using discovery in this case. As grounds therefor, Citizen Center states as follows: BACKGROUND 1. The Colorado Open Records Act, to -206, C.R.S. (2011), provides that All public records shall be open for inspection by any person at

2 Case 1:12-cv CMA-MJW Document 54 Filed 06/18/12 USDC Colorado Page 2 of 15 reasonable times subject only to exceptions set out in CORA itself or otherwise provided by law (1)(a), C.R.S. (2011) (emphasis added). 2. In the proposed scheduling order for this case, the Defendants asked this Court to order Plaintiff Citizen Center and its individual members to 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. (Dkt. #42, at 21 8.d.2.) 3. Citizen Center objected in the proposed scheduling order to this proposed curtailment of its and its members exercise of a state statutory right on the grounds that such a prohibition, if imposed on both the entity and all of its members simply by virtue of the entity s participation in representational litigation, will violate the First Amendment constitutional rights to freedom of speech and association and to petition the government possessed by the organization and its members. (Dkt. #42, at 22 8.d.2.) 4. At the scheduling conference held on June 4, 2012, Citizen Center maintained these objections and further objected that the proposed injunction against submission of CORA requests was overly broad and would be difficult for the Plaintiff to police with respect to individual members, whom the organization does not control. 5. The Defendants, meanwhile, offered no showing of cause for the order proposed in Paragraph 8.d.2. beyond the vague and unsubstantiated assertions of counsel that some Defendants were receiving multiple CORA requests from persons that those Defendants presumed to be members of Citizen Center. 2

3 Case 1:12-cv CMA-MJW Document 54 Filed 06/18/12 USDC Colorado Page 3 of After a colloquy with counsel for both sides, Magistrate Judge Watanabe ruled from the bench that the Defendants proposed prohibition on Plaintiff s and its members submission of CORA requests to the Defendants for items obtainable using discovery was adopted. 7. Discovery in this case, and thus the CORA prohibition, is now set to last for more than the next ten months, or until April 30, (Dkt. #53, at 23 9.b.) 8. At the end of the status conference, Magistrate Judge Watanabe ordered Plaintiff s counsel to prepare, circulate to the Defendants and then resubmit to the Court by June 13 a revised scheduling order consistent with Magistrate Judge Watanabe s rulings from the bench and dated nunc pro tunc June 4, After adjournment but before Plaintiff s counsel left the courtroom, the courtroom clerk handed Plaintiff s counsel a paper copy of Magistrate Judge Watanabe s handwritten revisions to the proposed scheduling order for incorporation into the revised scheduling order. (Ex.1.) 10. The handwritten copy of Judge Watanabe s revisions bears the word Draft at the top of the first page and a stamp on the signature page that reads Michael J. Watanabe, U.S. Magistrate Judge, District of Colorado. (Ex. 1, at 1, 30.) 11. The handwritten copy of Magistrate Judge Watanabe s revisions contains, in Paragraph 8.d.2., the language of the CORA prohibition that was adopted by Magistrate Judge Watanabe from the bench. (Ex. 1, at d.2.) 12. The language of the CORA prohibition in the handwritten copy of Magistrate Judge Watanabe s revisions is substantially identical to the language of the 3

4 Case 1:12-cv CMA-MJW Document 54 Filed 06/18/12 USDC Colorado Page 4 of 15 prohibition as set out in Paragraph 8.d.2. of the nunc pro tunc scheduling order that the Court ultimately entered on June 13, 2012, following Plaintiff s counsel s resubmission of the revised document to the Court, (Dkt. #50), per the Magistrate s instructions from the bench. Compare Ex. 1, at d.2., with Dkt. #53, at 21 8.d On June 8, 2012, Citizen Center filed its Emergency Motion Of Citizen Center For Magistrate s Reconsideration And Stay Pending Reconsideration Of Part Of The Court s June 4 Scheduling Order. (Dkt. #46.) This emergency motion asked the Court to reconsider the CORA prohibition and to stay the prohibition pending its reconsideration. 14. On June 11, 2012, Magistrate Judge Watanabe gave the Defendants until June 22, 2012, to file a response to Citizen Center s emergency motion. (Dkt. #48.) The Magistrate did not stay the CORA prohibition pending his reconsideration of that part of the scheduling order. 15. Instead, on June 13, 2012, Magistrate Judge Watanabe entered the nunc pro tunc June 4th scheduling order. (Dkt. #53, at 21 8.d.2.) 16. Because a party may only object to a magistrate judge s order within 14 days after being served with a copy of the written order, see Fed. R. Civ. P. 72(a) and 72(b)(2), and because Magistrate Judge Watanabe s handwritten revisions of the proposed scheduling order memorializing his rulings from the bench and bearing his stamp were served by hand on Plaintiff s counsel on June 4, 2012, Citizen Center must presume as a matter of prudence that the deadline for Plaintiff to file and serve any Rule 72 objection is June 18,

5 Case 1:12-cv CMA-MJW Document 54 Filed 06/18/12 USDC Colorado Page 5 of The probability that Plaintiff s objections are due within fourteen days after June 4th is strengthened by the fact that the Scheduling Order ultimately entered on June 13 is dated nunc pro tunc June 4, 2012, and includes language substantially identical to the language that Magistrate Judge Watanabe adopted from the bench and included in the handwritten revisions served on Plaintiff s counsel on June Accordingly, notwithstanding that Plaintiff s emergency motion for reconsideration and stay pending reconsideration is still pending before Magistrate Judge Watanabe, Citizen Center now files this objection to Paragraph 8.d.2. of the Scheduling Order, (Dkt. #53, at 21 8.d.2.), as a protective step in order to preserve Citizen Center s rights to seek this Court s review of the CORA prohibition set out in Paragraph 8.d.2. of the Scheduling Order. See Hutchinson v. Pfeil, 105 F.3d 562, 566 (10th Cir. 1997) ( Properly filed objections resolved by the district court are a prerequisite to our review of a magistrate judge's order under 636(b)(1)(A). ). ARGUMENT I. LEGAL STANDARD Review of the magistrate judge's ruling is required by the district court when a party timely files written objections to that ruling, and the district court must defer to the magistrate judge's ruling unless it is clearly erroneous or contrary to law. Hutchinson, 105 F.3d at 566. A party may not assign as error a defect in the order not timely objected to. Fed. R. Civ. P. 72(a). A party s written objections are timely if they are filed and served within fourteen days after the party is served with a copy of the objectionable written order. See Fed. R. Civ. P. 72(a) and 72(b)(2). Under the clearly 5

6 Case 1:12-cv CMA-MJW Document 54 Filed 06/18/12 USDC Colorado Page 6 of 15 erroneous standard, the reviewing court [must] affirm unless it on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Allen v. Sybase, Inc., 468 F.3d 642, 658 (10th Cir. 2006) (internal quotation marks omitted). II. A LITIGANT S RIGHT TO MAKE USE OF THE COLORADO OPEN RECORDS ACT IS UNALTERED BY HER PARTICIPATION IN LITIGATION The Colorado Open Records Act, to -206, C.R.S. (2011), confers upon Citizen Center and its members an affirmative state statutory right to inspect and be furnished with copies of Colorado public records. CORA provides that All public records shall be open for inspection by any person at reasonable times subject only to exceptions set out in CORA itself or otherwise provided by law (1)(a), C.R.S. (2011) (emphasis added). Copies of any record that a person has a right to inspect must be furnished by the custodian upon request and at the requester s own cost. See (1) and (5)(a), C.R.S. (2011). CORA contains no exception for litigation. See People in Interest of A.A.T., 759 P.2d 853, 854 (Colo. App. 1988) ( [T]he Act does not expressly limit access to any records merely because a person is engaged in litigation with the public agency from which access to records is requested. ). On the contrary, the statute expressly contemplates that a party engaged in litigation against a public records custodian may still use CORA to obtain discoverable public records from that custodian. See (5), C.R.S. (2011). The statute specifically guards against discovery abuse in such circumstances by disallowing the requester from receiving attorney fees and costs from the litigant-custodian, which the requester would otherwise normally be entitled to claim after a successful CORA suit to compel production of public records. See id. 6

7 Case 1:12-cv CMA-MJW Document 54 Filed 06/18/12 USDC Colorado Page 7 of 15 CORA does permit a court to order that a particular inspection of public records not be allowed, see (1)(c), C.R.S. (2011), but the appropriate context for issuance of such prohibitory orders is in proceedings brought by a requester or by a custodian under CORA itself for judicial guidance as to whether a particular record is subject to or exempt from inspection. See (5) and -204(6), C.R.S. (2011). In bringing this lawsuit, Citizen Center has in no way as a matter of law abandoned or suspended the CORA rights possessed either by itself or by its individual members. III. THE MAGISTRATE S PROHIBITION ON EXERCISE BY THE PLAINTIFF AND ITS MEMBERS OF THEIR RIGHTS TO SUBMIT CORA REQUESTS IS INJUNCTIVE IN NATURE Magistrate Judge Watanabe s adoption of the Defendants proposal made in Paragraph 8.d.2. of the proposed scheduling order prohibits Citizen Center and its members from exercising their CORA rights for the duration of discovery in this case a period of more than ten months. Such a deprivation is clearly injunctive in nature. See MAI Basic Four, Inc. v. Basis, Inc., 962 F.2d 978, 981 (10th Cir.1992) ( The preliminary injunction on appeal not only prohibits the filing of other actions in any federal court; it also prohibits threatening to file such actions. ). Obviously not every discovery order that commands or prohibits a party s action qualifies as an injunction. Cf. Hinton v. Dept. of J., 844 F.2d 126, 130 (3d Cir. 1988) ( If the fact that the court has directed a party to take some action, here to produce the index, is enough to constitute the order as an injunction, then every discovery order would qualify for immediate interlocutory appeal under section 1292(a)(1). ). But even 7

8 Case 1:12-cv CMA-MJW Document 54 Filed 06/18/12 USDC Colorado Page 8 of 15 if this Court is inclined to view the CORA prohibition here as a non-dispositive discovery order, the prohibition passes the test for what constitutes an injunction under the law of the Tenth Circuit because (1) it has the practical effect of granting injunctive relief, (2) it will, if executed, result in serious or irreparable consequences to Citizen Center, (Ex. 3, at ), and to Citizen Center s members, (Exs. 4-9), and (3) it can be challenged effectively only through immediate appeal. See U.S. v. McVeigh, 157 F.3d 809, (1998) (holding that a non-dispositive discovery order was injunctive in effect because it did more than merely regulate materials exchanged between the parties incident to the litigation ). Here, as in McVeigh, the prohibition on certain CORA requests does more than merely regulate materials exchanged between the parties incident to the litigation; rather, the CORA prohibition here forbids Plaintiff and its individual members from lawfully accessing any public documents held by any of the Defendants for no more targeted reason than those documents might be obtainable using discovery in this litigation. This curtailment of statutory rights not only of a party but of all of its members will have serious and irreparable consequences for Citizen Center and its individual members. In response to the Court s bench ruling adopting the Defendants proposed prohibition on submission of CORA requests, Citizen Center immediately alerted its members to cease submitting CORA requests to any of the Defendants. (Ex. 2.) As detailed in the attached affidavits, Citizen Center now stands to suffer an almost immediate loss of membership as a result of the prohibition on CORA requests by its 8

9 Case 1:12-cv CMA-MJW Document 54 Filed 06/18/12 USDC Colorado Page 9 of 15 members, (Ex. 3, at ), and Citizen Center s individual members now face serious consequences in the form of an immediate curtailment of their respective abilities to use CORA for personal and professional projects that are entirely separate from this litigation, (Exs. 4-9, Affs. Benns, Kolwicz, Sarner, Marks, Hugenberg and Eberle). Such serious and irreparable consequences can only effectively be challenged immediately; once ten months of discovery have passed the damage to Citizen Center and its membership will be beyond repair. See Carson v. Am. Brands, Inc., 450 U.S. 79, (1981) (finding immediate appeal to be necessary for effective challenge where delay would cause the serious, irreparable consequences at issue to materialize). Although it is not expressly labeled an injunction, the prohibition set out in Paragraph 8.d.2. of the Scheduling Order cannot, under applicable Tenth Circuit law, properly be characterized as anything else. IV. THE MAGISTRATE S RULING WAS CONTRARY TO LAW BECAUSE A UNITED STATES MAGISTRATE JUDGE LACKS AUTHORITY TO GRANT INJUNCTIVE RELIEF IN THE ABSENCE OF CONSENT, WHICH IS NOT PRESENT HERE Because the relief set out in Paragraph 8.d.2. of the Scheduling Order is injunctive in character, it was contrary to law for Magistrate Judge Watanabe to grant it. For purposes of 28 U.S.C. 636(b)(1)(A), the Defendants request for the CORA prohibition in the proposed scheduling order was tantamount to a motion for an injunction. See Ocelot Oil Corp. v. Sparrow Industries, 847 F.2d 1458, 1462 (10th Cir. 1988) ( [M]otions not designated on their face as one of those excepted in subsection 9

10 Case 1:12-cv CMA-MJW Document 54 Filed 06/18/12 USDC Colorado Page 10 of 15 (A) are nevertheless to be treated as such a motion when they have an identical effect. ). A United States magistrate may not grant injunctive relief. See 28 U.S.C. 636(b)(1)(A) ( [A] judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief. ) (emphasis added); see also Lister v. Dept. Treas., 408 F.3d 1309, 1311 (10th Cir. 2005) ( A magistrate judge's authority is narrowly prescribed by 28 U.S.C ); Milliner v. Champion, 968 F.2d 20 (10th Cir. 1992) (unpublished) ( Motions for injunctive relief may not be referred to the magistrate judge for final disposition. ). This Court referred this case to Magistrate Judge Watanabe to conduct only nondispositive proceedings pursuant to 28 U.S.C. 636(b)(1)(A) and (B) and Fed. R. Civ. P. 72(a) and (b). (Dkt. #6.) The parties have not consented to the Magistrate s exercise of jurisdiction over dispositive matters under 28 U.S.C. 636(c)(1). (Dkt. #42, at 19 7; Dkt. #53, at 19 7.) Accordingly, the granting of what is effectively a motion by the Defendants for injunctive relief necessarily goes beyond the Magistrate s authority in this case. At most, Magistrate Judge Watanabe possesses the authority to file proposed findings and recommendations with this Court recommending that the injunctive relief requested by the Defendants in Paragraph 8.d.2. of the Scheduling Order be granted. See 28 U.S.C. 636(b)(1)(C). But, as discussed in the next section, it would be both clearly erroneous and contrary to law for Magistrate Judge Watanabe to recommend 10

11 Case 1:12-cv CMA-MJW Document 54 Filed 06/18/12 USDC Colorado Page 11 of 15 such relief, since the Defendants have made no showing whatsoever that such an injunction is warranted. V. THE MAGISTRATE S RULING WAS CLEARLY ERRONEOUS AND CONTRARY TO LAW BECAUSE THE DEFENDANTS HAVE MADE NO EVIDENTIARY SHOWING AND THUS HAVE FAILED TO SATISFY ANY OF THE REQUIREMENTS FOR INJUNCTIVE RELIEF Defendants have made no evidentiary showing that any kind of injunctive relief is required to prevent Plaintiff from using CORA as a means to exceed the discovery limits included in this Order. (Dkt. #53, at 21 8.d.2.) To obtain a preliminary injunction, the movant must show: (1) a substantial likelihood of success on the merits; (2) irreparable harm to the movant if the injunction is denied; (3) the threatened injury outweighs the harm that the preliminary injunction may cause the opposing party; and (4) the injunction, if issued, will not adversely affect the public interest. Gen. Motors Corp. v. Urb. Gorilla, LLC, 500 F.3d 1222, 1226 (10th Cir. 2007). No evidence has even been proffered by the Defendants to show that a single one of these factors is present. At the time of the Defendants request for this relief, discovery had not yet begun and no orders governing discovery had been entered by this Court. Thus any concerns by the Defendants about Citizen Center or its members circumventing discovery limits were wholly premature. Even so, Defendants proffered no evidence that allowing these particular members of the public to inspect and copy public records (just as they could do in the absence of litigation) will cause any injury to any of the Defendants, much less subject the Defendants to irreparable harm. The most that counsel for Defendants asserted at the June 4 scheduling conference was that some of the seven Defendants had recently received a number of 11

12 Case 1:12-cv CMA-MJW Document 54 Filed 06/18/12 USDC Colorado Page 12 of 15 CORA requests from unnamed persons whom the Defendants presumed to be members of Citizen Center, presumably due to the nature of the CORA requests received. Statements of counsel are not evidence in general, see Minshall v. McGraw Hill Broad. Co., Inc., 323 F.3d 1273, 1285 (10th Cir. 2003), but even if they were, threadbare statements such as these cannot even begin to constitute an adequate factual showing of necessity sufficient to warrant the extraordinary remedy of injunctive relief. O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 1001 n.2 (10th Cir. 2004). Even if some showing had been made by the Defendants to support an award of injunctive relief, Magistrate Judge Watanabe s prohibition on all CORA requests by all members of Citizen Center to these Defendants is excessively broad in these circumstances, where discovery is directed by Citizen Center alone and where there has been no showing that the entire membership has any involvement in the organization s discovery strategy. The Scheduling Order restricts the rights of persons who are not parties merely because they are members of Citizen Center. It does so without any showing that either the members or the entity has done anything objectionable, much less done so acting in concert and for the purpose of circumventing discovery limits. The burden on the membership s and the entity s associational rights from such a broad injunction are obvious, as is the fact that Citizen Center itself is placed by such an injunction in the impossible position of having to police, under the heavy threat of contempt sanctions, the independent conduct of persons over whom the organization has not been shown to have and in fact does not have any control. 12

13 Case 1:12-cv CMA-MJW Document 54 Filed 06/18/12 USDC Colorado Page 13 of 15 Finally, the substance of the prohibition is also excessively broad, in that it bars requests for any public record obtainable using discovery, meaning every potentially discoverable document in any Defendants custody. Such a broad sweep encompasses requests for public records that may have no value at all for Citizen Center s trial strategy as well as all others that Citizen Center does not even intend to seek in discovery. Such an overbroad injunction would be improper even where (unlike here) some measure of necessity for injunctive relief had otherwise been shown. Cf. Winkler v. Eli Lilly & Co., 101 F.3d 1196, 1203 (7th Cir. 1996) ( [T]his broad language sweeps too many people within its interdict, and such a far-reaching and overly expansive injunction is an abuse of discretion. ) In Main v. Martin, 06-CV WDM-MJW, 2009 WL , at *3 (D. Colo. 2009), this Court upheld a recommendation by Magistrate Judge Watanabe to deny a motion for a discovery order similarly in the nature of an injunction on the grounds that this Court lacked authority to enjoin persons who were not parties to the action, especially in the complete absence of any required showing of necessity. This Court should refrain from granting the kind of injunctive relief requested by the Defendants here for the very same reasons that it refused to grant such relief in Main v. Martin. To do otherwise would be contrary to law. VI. TO AVOID IMMEDIATE HARM TO CITIZEN CENTER AND ITS MEMBERS, THIS COURT SHOULD STAY PARAGRAPH 8.D.2. OF THE SCHEDULING ORDER PENDING CONSIDERATION OF THIS OBJECTION Because of the activist and vocational character of Citizen Center s membership, Magistrate Judge Watanabe s adoption of the Defendants proposal made in Paragraph 13

14 Case 1:12-cv CMA-MJW Document 54 Filed 06/18/12 USDC Colorado Page 14 of 15 8.d.2. of the proposed scheduling order is catastrophically prejudicial to the Plaintiff for reasons that are clearly set forth in the attached affidavits. The prohibition on members exercise of their rights under CORA incentivizes member resignations and thus potentially imperils the Plaintiff s standing with respect to one or more of the Defendants. The individual members of Citizen Center themselves face immediate curtailment of their ongoing personal and professional projects. To avoid these harms during the pendency of this Court s consideration of this objection, Citizen Center respectfully requests this Court to stay Paragraph 8.d.2. of the Scheduling Order with immediate effect. WHEREFORE Citizen Center respectfully objects to that part of the scheduling order, (Dkt. #53, at 21 8.d.2.), that enjoins Plaintiff and all of its individual members from making public records requests to any of the Defendants for public records that are otherwise obtainable using discovery in this case. Dated: June 18th, 2012 Respectfully submitted, By: s/ Robert A. McGuire Robert A. McGuire ROBERT A. MCGUIRE, ATTORNEY AT LAW, LLC 1624 Market Street, Suite 202 Denver, Colorado Telephone: (303) ram@lawram.com Attorney for Plaintiff Citizen Center 14

15 Case 1:12-cv CMA-MJW Document 54 Filed 06/18/12 USDC Colorado Page 15 of 15 CERTIFICATE OF SERVICE I hereby certify that on June 18, 2012, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following addresses: david@hshh.com daleg@hallevans.com jdavis@chaffeecounty.org lyle.dechant@mesacounty.us david.frankel@mesacounty.us; jhamilton@bouldercounty.org kgnelson@bouldercounty.org maurie.knaizer@state.co.us dana.williams@sos.state.co.us debbie.bendell@state.co.us lyonst@hallevans.com cmecf@hallevans.com wilsonm@hallevans.com wmott@jeffco.us wressue@larimer.org tstillwell@larimer.org jeanninehaag@larimer.org lconnors@larimer.org bryan.treu@eaglecounty.us, jennifer@hshh.com gutierrezd@hallevans.com btidd@chaffeecounty.org mcatty@mesacounty.us dhughes@bouldercounty.org cwilliams@bouldercounty.org kcoxriede@bouldercounty.org suzanne.staiert@sos.state.co.us scott.gessler@sos.state.co.us pam.ponder@state.co.us mandisc@hallevans.com witts@hallevans.com leeann.morrill@state.co.us dhokanso@jeffco.us ghass@larimer.org jpettus@larimer.org btotten@larimer.org krittwager@larimer.org and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand-delivery, etc.) indicated by the non participant s name: Andrea Nina Atencio (mail) Mesa County Attorney's Office P.O. Box 20, Grand Junction, CO s/ Robert A. McGuire Robert A. McGuire Attorney for Plaintiff Citizen Center Robert A. McGuire, Attorney at Law, LLC 1624 Market Street, Suite 202 Denver, Colorado Telephone: (303) ram@lawram.com 15

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48 Case 1:12-cv CMA-MJW Document 54-2 Filed 06/18/12 USDC Colorado Page 1 of 4 From: To: Subject: Date: Marilyn Marks Marilyn Marks ALERT---Your urgent attention and cooperation needed--citizen Center court order Monday, June 04, :49:06 PM To members of Citizen Center: This notice needs your immediate attention if you are actively engaged in or considering making public records requests to any of the following governmental entities: Colorado Secretary of State Boulder County Clerk Eagle County Clerk Chaffee County Clerk Mesa County Clerk Jefferson County Clerk Larimer County Clerk During the scheduling hearing this morning in federal court on the Citizen Center v Gessler, et al., case, over our strenuous objections, the defendants were very surprisingly granted their request (excerpted at the bottom of this ) that no members of Citizen Center may submit public records requests to any of the seven defendants during the course of discovery in this case! This means that both Citizen Center and its members have been, at the request of the Secretary of State and defendant clerks, divested by the Court of their statutory rights under Colorado law to inspect public records held by these 7 defendants for a period beginning today and ending more than 10 months from now, in April 30, (If you have submitted a CORA request prior to today s order, then your request should presumably still be honored ) I feel that I have no right to ask you this, but until we can prevail upon Magistrate Judge Watanabe to reconsider this objectionable ruling (which we are undertaking to do immediately by way of an emergency motion), please do not submit public records requests to the above defendants seeking to inspect public records that are obtainable using discovery in this case. Under the wording of the order, it apparently does not matter whether you are seeking the information for your own purposes, instead of Citizen Center s; the order s scope is very broad. And, unfortunately, what is obtainable using discovery encompasses not only information that is relevant to the issues in Citizen Center s case that we are likely to use, but ALSO any information that the Court might see as reasonably calculated to lead to the discovery of admissible evidence. Because of the breadth of this gag order on CORA requests by Citizen Center and its members, our attorney, Robert McGuire, has instructed us to err on the side of safety and avoid all CORA requests to these seven defendants until we can get

49 Case 1:12-cv CMA-MJW Document 54-2 Filed 06/18/12 USDC Colorado Page 2 of 4 this sorted out. It is important that you comply with this Order, no matter how outrageous it may appear. Otherwise, we could find ourselves in contempt of court and subjected to sanctions in case of a motion for contempt brought by any of the defendants. I realize that some of you are journalists who must use public records requests to professionally execute your work. I realize that at least one member is a candidate for election this year and needs public information about voter rolls, election activities, and government activities related to the campaign issues and platform. Others of you manage and are active in other public interest groups that rely on the ability to inspect public records for the execution of their mission. I know that some of you are actively involved in campaigning for candidates on the primary and general election ballot. (I fear that even requests for get out the vote information made on behalf of a campaign or candidate will violate this order from the Court.) Others of you have ongoing personal and political projects that are similarly unrelated to Citizen Center activities and you use CORA requests to further those projects. I recognize that public information requests under CORA are critically necessary to allowing each of you to fulfill your responsibilities to the candidates, campaigns and organizations for which you are doing volunteer or compensated work. Because this ruling is overbroad and threatens to derail all of the activities I have just noted, please understand that we will work urgently to resolve this with the court as soon as possible. A gag order like this one is obviously a gross infringement on our collective rights to association, to effectively run for office, and to carry on each of our own individual interactions with the government, and even, in some cases, to perform our career journalistic and other professional work. I believe that this order is wholly improper, and I am confident that the Court will reconsider its ruling once we have been able to bring the full ramifications of this prohibition on using CORA to its attention. Just imagine, for example, if a church were in litigation with a city over zoning issues for expanding their building, and all the members of the church were suddenly no longer allowed to ask for public records on virtually any subject! The price of being a member of the church would be the loss of the civil right to obtain public records!! That is the equivalent of what the defendants just requested and received permission from the Court to do to the members of Citizen Center. Alternately, imagine if a court prohibited all members of the Colorado ACLU from seeking access to public records merely because of their association with the organization being in litigation. Simply picturing the scenario is all that is needed to immediately see that this cannot be an appropriate ruling. While we are resolving this with the courts, we ask for your patience and support. We will not be actively recruiting any more Citizen Center members during the pendency of this dispute, as we do not want to impair the rights of prospective new members to engage their governments or work in political campaigns merely as a result of their having chosen to associate with us as a member of Citizen Center.

50 Case 1:12-cv CMA-MJW Document 54-2 Filed 06/18/12 USDC Colorado Page 3 of 4 I will keep you updated on this issue and will let you know as soon as we have been able to appeal to the Court to reconsider this extremely troubling ruling. Thank you for your support and for your ongoing efforts in defense of our rights and responsibilities as citizens. Signed, Marilyn Marks, Founder Citizen Center www. TheCitizenCenter.org Marilyn@TheCitizenCenter.org Defendants propose that this Court order Plaintiff Citizen Center and its individual members to 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. Plaintiff objects to this Court s entry of any such order as burdensome to and violative of Citizen Center s and its members First Amendment constitutional rights to freedom of speech and association and to petition the government.

51 Case 1:12-cv CMA-MJW Document 54-2 Filed 06/18/12 USDC Colorado Page 4 of 4 CERTIFICATE OF SERVICE I hereby certify that on June 8, 2012, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following addresses: dayraud@larimer.org daleg@hallevans.com jdavis@chaffeecounty.org lyle.dechant@mesacounty.us david.frankel@mesacounty.us; jhamilton@bouldercounty.org kgnelson@bouldercounty.org maurie.knaizer@state.co.us dana.williams@sos.state.co.us debbie.bendell@state.co.us lyonst@hallevans.com cmecf@hallevans.com wilsonm@hallevans.com wmott@jeffco.us wressue@larimer.org tstillwell@larimer.org jeanninehaag@larimer.org krittwager@larimer.org jennifer@hshh.com gutierrezd@hallevans.com btidd@chaffeecounty.org mcatty@mesacounty.us dhughes@bouldercounty.org cwilliams@bouldercounty.org kcoxriede@bouldercounty.org suzanne.staiert@sos.state.co.us scott.gessler@sos.state.co.us pam.ponder@state.co.us mandisc@hallevans.com witts@hallevans.com leeann.morrill@state.co.us dhokanso@jeffco.us ghass@larimer.org jpettus@larimer.org btotten@larimer.org bryan.treu@eaglecounty.us, and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand-delivery, etc.) indicated by the non participant s name: Andrea Nina Atencio (mail) Mesa County Attorney's Office P.O. Box 20, Grand Junction, CO s/ Robert A. McGuire Robert A. McGuire Attorney for Plaintiff Citizen Center Robert A. McGuire, Attorney at Law, LLC 1624 Market Street, Suite 202 Denver, Colorado Telephone: (303) ram@lawram.com

52 Case 1:12-cv CMA-MJW Document 54-3 Filed 06/18/12 USDC Colorado Page 1 of 12 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 12-CV CMA-MJW 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. DECLARATION OF MARILYN MARKS ON BEHALF OF CITIZEN CENTER I, Marilyn R. Marks, pursuant to 28 U.S.C. 1746, hereby declare as follows: 1. I am a founder and director of Citizen Center, a non-profit corporation registered with the Secretary of State of Colorado. 2. Citizen Center engages in numerous government transparency activities and relies on efficient public record access for the vast majority of its public policy work. 3. Core to Citizen Center mission is promoting the public s right to know and the responsibilities of citizens for government oversight. Our core concept is promoting citizens use of transparency laws as a means of protecting the constitutional rights of our members and of all American citizens, including the fundamental right to

53 Case 1:12-cv CMA-MJW Document 54-3 Filed 06/18/12 USDC Colorado Page 2 of 12 vote, the fundamental right to freedom of speech, the fundamental right to freedom of association and those substantial liberty interests created by state law that warrant federal constitutional protection, such as the right to secrecy in voting and freedom of speech under the Colorado Constitution. 4. Almost all current activities of Citizen Center are located in Colorado, with a particular emphasis on election transparency. Without meaningful access to public records of the Secretary of State and some large counties, the entire work of Citizen Center becomes impossibly weakened as a practical matter. 5. Citizen Center s membership is a private matter by design. Some members have asked that their names not be publicly disclosed or even disclosed to other members, given the history of retribution and retaliation involved in some of the controversial issues central to the mission of Citizen Center. Members value their ability to use the right of private association to gain from the collective efforts and information of the group without taking personal risk of such retaliation. 6. The court order restricting members from accessing public records effectively removes the protective shield of Citizen Center from confidential members who wish to access public records and communicate through the association, rather than individually. Their rights to association are being significantly impaired. 7. The provision of the scheduling order that curtails the right of Citizen Center and its members to submit Colorado Open Records Act (CORA) requests to any of the seven defendants during discovery in this case has already had and will continue 2 Decl. Marilyn Marks on behalf of Citizen Center

54 Case 1:12-cv CMA-MJW Document 54-3 Filed 06/18/12 USDC Colorado Page 3 of 12 to have a paralyzing effect on the public policy work of Citizen Center and some of the members unless those members immediately resign from Citizen Center. 8. Citizen Center is involved in, and anticipates pursuing more involvement in, 2012 election verification issues, which necessarily requires ongoing access to public records maintained by the Secretary of State. 9. For example, Citizen Center is advising members and other citizens in Saguache County on citizen oversight activities in the primary election, including the Friday, June 8, 2012, Logic and Accuracy Test. This work will continue to require access to public records regarding testing standards, prior-year audit records, statewide results, and technical system documentation -- all information that is maintained by the Secretary of State in the form of public records. The order prohibiting CORA requests will prohibit Citizen Center from accessing these records. At least three members of the organization are involved in this effort. Their efforts will be greatly hampered if the order is not substantially altered. 10. Citizen Center is investigating questionable financial transactions, including the use of state Help America Vote Act ( HAVA ) funds involving the purchase, leasing and services contracts for the Saguache voting system. The Secretary of State maintains numerous relevant records. Jefferson County and Mesa County, maintain the only other such systems in the state, so their records are important for comparison purposes. This investigation abruptly halted on June 4, 2012, after the court entered its scheduling order from the bench, and our work cannot resume so long as the scheduling order stands with the prohibition on public records requests by Citizen 3 Decl. Marilyn Marks on behalf of Citizen Center

55 Case 1:12-cv CMA-MJW Document 54-3 Filed 06/18/12 USDC Colorado Page 4 of 12 Center and its members. A meeting of Citizen Center leadership was scheduled for Friday, June 8, 2012, with Deputy Secretary of State Staiert to discuss this topic. The time-sensitive acquisition of public record information needed to make this scheduled meeting productive has now been curtailed by the CORA prohibition of the scheduling order. 11. Citizen Center has been asked to investigate a potential sunshine law violation involving elected officers in one of the defendant counties. The clerk is likely to have relevant records that now cannot be accessed through public record requests. As a result, Citizen Center cannot pursue the requested investigation. 12. Citizen Center, through one of its members, has been providing expert advice to another non-profit group on the subject of hand-counting methods for elections in small counties. Preventing access to historical audit records and error-rate data maintained by the Secretary of State s office inhibits the quality of the advice Citizen Center can offer. The member s alternative is to resign from Citizen Center and provide the requested help through another organization. As a leader of Citizen Center, however, I am uncertain whether and fearful that the organization will be held responsible for violating the court s scheduling order if a former member makes otherwise prohibited CORA requests after resigning. 13. Citizen Center, more than any other public policy group, has invested hundreds of man hours in educating the public and promoting a gubernatorial veto of elections bill HB Public documents available from the Secretary of State s office and from some defendant counties are necessary for use in this ongoing effort. 4 Decl. Marilyn Marks on behalf of Citizen Center

56 Case 1:12-cv CMA-MJW Document 54-3 Filed 06/18/12 USDC Colorado Page 5 of 12 The scheduling order s prohibition on CORA requests by Citizen Center and its members has halted all pending work needed to obtain current information from the Secretary of State and defendant clerks on this important state-level public policy debate. 14..Citizen Center is presently investigating unauthorized, poorly documented policy changes in the Secretary of State s office that remove important security controls on voting systems statewide. The work was undertaken to prepare for possible complaints or recommended remedies during the upcoming June 26 election. Without the ability to access the related public records, Citizen Center cannot offer meaningful proposals or professionally document the technical issues. 15. Citizen Center has been informally asked by Deputy Secretary of State Staiert to comment on potential changes to Rule 8 (Watcher Rules) of the Election Rules of the Secretary of State. Without the ability to use public records requests to review other public comments, to access related Secretary of State documents, and to stay as informed as other commenters, Citizen Center will absolutely be impaired in its ability to make valid contributions to such public policy matters. 16. Citizen Center has invested hundreds of man hours in investigating and proposing solutions for the controversial election watcher regulations which govern candidates rights to bring independent oversight during elections. The Secretary of State is in the process of informal rule revision and preparing for formal rule making. Citizen Center has been a central point of information for at least three other non-profit organizations actively working on this topic since April, Without the ability to 5 Decl. Marilyn Marks on behalf of Citizen Center

57 Case 1:12-cv CMA-MJW Document 54-3 Filed 06/18/12 USDC Colorado Page 6 of 12 access public records maintained by the Secretary of State and defendant clerks, Citizen Center cannot meaningfully continue this public policy project. 17. Citizen Center was asked on June 3, 2012, to help a group of voters file a formal HAVA complaint with the Secretary of State regarding the upcoming primary election. Citizen Center was asked to assist because of our deep expertise and collection of data related to this complaint process and particular voting system in question. In good conscience, Citizen Center will be required to refer the voters to other organizations for assistance, as our ability to access additional public records from defendant s offices has been fatally compromised by the court s scheduling order. Lest it risk being held to have circumvented the scheduling order and thus become subject to contempt of court sanctions, Citizen Center is unable even to suggest to the other citizens what records they should request from defendants in this case to document a HAVA complaint. 18. Citizen Center has been requested by two political parties to help provide supplemental training for potential canvass board members and canvass board watchers for the 2012 elections. Without access to various public records from defendant counties on canvass board policies, appointments, training, and past practices, our work becomes less valuable to those who have requested our help. Citizen Center cannot take on such requests, which we would otherwise embrace as projects in furtherance of our mission and goals, where the effectiveness of our work will suffer because of the restrictive order of this court. 6 Decl. Marilyn Marks on behalf of Citizen Center

58 Case 1:12-cv CMA-MJW Document 54-3 Filed 06/18/12 USDC Colorado Page 7 of Citizen Center halted membership recruiting on June 4, 2012, upon learning from counsel of the entry of the scheduling order prohibiting Citizen Center and its members from accessing public records in the custody of the seven defendants. Citizen Center, with a mission of promoting the public s right to know, cannot fulfill its mission if both the organization and its members are banned from requesting public records from seven of the most important public records custodians in Colorado state government. 20. I am the only person with full access to the membership list of Citizen Center. While co-founders Mary Eberle and Al Kolwicz know the names of almost all members, some members are so concerned about retribution from public officials that they have asked for confidentiality of their membership. One member, for example, takes great care to interact with me, in my capacity as Citizen Center s director, only in live conversation, and expressly does so in order to avoid any chance of unintended disclosure of written communication. Such members enjoy the benefits of the organization s work and contribute to it in confidence. Depriving such members of their statutory right to inspect state public records will cause some of these individual members to disassociate from Citizen Center. 21. When I communicate with the entire membership list through , I blind copy our members so as not to disclose some members names who do not wish to subject themselves to criticism for their association with Citizen Center. 22. A citizen contacted me on both June 5 and 6, 2012, reporting considerable personal political harassment and retribution due to the accusation that this individual 7 Decl. Marilyn Marks on behalf of Citizen Center

59 Case 1:12-cv CMA-MJW Document 54-3 Filed 06/18/12 USDC Colorado Page 8 of 12 may be associated with the work of Citizen Center. The ability to engage in public policy work privately and confidentially is key to the value of Citizen Center association for some citizens. Requiring that all members report to Citizen Center or have Citizen Center approve their private activities of public record access is anathema to the mission of the organization and undercuts members rights to freely associate with other citizens sympathetic to their goals on public policy matters. 23. At least one member of Citizen Center is currently employed in Colorado government. This member frequently accesses public information from the Secretary of State s office as a required part of the member s professional job responsibilities, and in no way related to this litigation. After learning of the court s scheduling order prohibiting CORA requests to the defendants, this member communicated the fear of being unable to perform job functions without risk of violating the court s prohibition on submitting public records requests to the Secretary of State s office. 24. Another member is running for elected office and, if successful, will be, in the course of official duties, routinely accessing public information from some of the defendants. 25. The scheduling order s prohibition on Citizen Center and its members submitting CORA requests to any of the defendants for the duration of discovery in this case eliminates these members ability to stay involved with Citizen Center. They cannot be asked to give up their careers as the price of maintaining their association with Citizen Center. 8 Decl. Marilyn Marks on behalf of Citizen Center