Citizen Center v. Gessler et al

Filing 72

ORDER granting 46 Motion for Reconsideration and amending 53 Scheduling Order by Magistrate Judge Michael J. Watanabe on 7/16/12.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-00370-CMA-MJW
CITIZEN CENTER, a Colorado nonprofit corporation,
Plaintiff(s),
v.
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; and,
TEAK SIMONTON, in her official capacity as Eagle County Clerk & Recorder,
Defendant(s).

ORDER REGARDING
EMERGENCY MOTION OF CITIZEN CENTER FOR MAGISTRATE’S
RECONSIDERATION AND STAY PENDING RECONSIDERATION OF PART OF THE
COURT’S JUNE 4 SCHEDULING ORDER
(DOCKET NO. 46)

Entered by Magistrate Judge Michael J. Watanabe

This matter was before the court on July 13, 2012, for hearing on the Emergency
Motion of Citizen Center for Magistrate’s Reconsideration and Stay Pending
Reconsideration of Part of the Court’s June 4 Scheduling Order (docket no. 46). The
court has considered the subject motion (docket no. 46), the joint response by County
Clerk’s (docket no. 57), the response by Scott Gessler, in his official capacity as
Colorado Secretary of State (docket no. 58), and the reply (docket no. 66). In addition,
the court has taken judicial notice of the court’s file and has considered applicable

2
Federal Rules of Civil Procedure and case law. Furthermore, the court has reviewed
and carefully considered the Colorado Open Records Act (“CORA”). Lastly, the court
has considered oral argument presented by the parties through counsel, Defendants’
Exhibit A, and Plaintiff’s Exhibits 1, 2, and 3. The court now being fully informed makes
the following finding of fact, conclusions of law, and order.
In the subject motion (docket no. 46), Plaintiff argues that this court has
misapprehended controlling law by granting what amounts to injunctive relief in excess
of the magistrate’s authority and without requiring satisfaction by the Defendants of any
of the legal prerequisites for obtaining an injunction. [docket no. 46 at p. 4].
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The court finds:
1.

That I have jurisdiction over the subject matter and over the parties
to this lawsuit. See Order of Reference dated July 20, 2011
(docket no. 6) by District Judge Arguello giving authority to
Magistrate Judge Watanabe pursuant to 28 U.S.C. § 636(b)(1)(A)(C) and Fed. R. Civ. P. 72 and D.C.COLO.LCivR 72.1C.

2.

That venue is proper in the state and District of Colorado.

3.

That each party has been given a fair and adequate opportunity to
be heard.

4.

That “[t]he Federal Rules of Civil Procedure recognize no motion for
reconsideration.” Hawkins v. Evans, 64 F.3d 543, 546 (10th Cir.
1995) (quotation and internal quotation marks omitted). “The
court’s treatment of the motion for reconsideration depends on

3
whether the order is a final order that disposes of all claims and all
parties or is an interlocutory order.” Gagliardi v. Duran, 2009 WL
5220679, *1 (D. Colo. Dec. 31, 2009). “[A]ny order . . . however
designated, which adjudicates fewer than all the claims or the rights
and liabilities of fewer that all the parties is an interlocutory order
which is subject to revision at any time before the entry of judgment
adjudicating all the claims and the rights and liabilities of all the
parties.” Id. (quoting Raytheon Constructors, Inc. v. Asarco Inc.,
368 F.3d 1214, 1217 (10th Cir. 2003); National Bus. Brokers, Ltd. v.
Jim Williamson Productions, Inc., 115 F. Supp.2d 1250, 1255 (D.
Colo. 2000)). “Notwithstanding the court’s broad discretion to alter
its interlocutory orders, the motion to reconsider ‘is not at the
disposal of parties who want to rehash old arguments.’” National
Bus. Brokers, 115 F. Supp.2d at 1256 (quotation and internal
quotation marks omitted). “Rather, as a practical matter, ‘[t]o
succeed in a motion to reconsider, a party must set forth facts or
law of a strongly convincing nature to induce the court to reverse its
prior decision.’” Id. (quotation omitted). “A motion to reconsider . . .
should be denied unless it clearly demonstrates manifest error of
law or fact or presents newly discovered evidence.” Id.
5.

That on June 4, 2012, this court conducted a Rule 16 Scheduling
Conference (see Docket No. 43, Courtroom Minutes/Minute Order)
and entered a Rule 16 Scheduling Order dated June 13, 2012,

4
nunc pro tunc June 4, 2012 (docket no. 53). During the Scheduling
Conference, this court carefully considered the proffers made by
the parties through their counsel concerning discovery and
limitations on discovery, and this court entered a Scheduling Order
(docket no. 53) consistent with the needs of this case for discovery
and consistent with Fed. R. Civ. P. 1 and the Civil Justice Reform
Act.
6.

That paragraph 8(d)(2) - Discovery Limitations - in the Rule 16
Scheduling Order (docket no. 53), states:
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.
Plaintiff objects to the order set out in Paragraph 8.d.2. 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 and as injunctive relief
that is beyond the scope of the Magistrate’s authority to order.

7.

That the plain language of paragraph 8(d)(2) in the Scheduling
Order (docket no. 53) does not prohibit Plaintiff or its members from

5
submitting any CORA requests to non-defendant County Clerks
and Recorders.
8.

That the plain language of paragraph 8(d)(2) in the Scheduling
Order (docket no. 53) does not prohibit Plaintiff or its members from
submitting any CORA requests to Defendants, but instead it
prohibits them from using CORA as a means to circumvent this
court’s Scheduling Order (docket no. 53) and to abuse the
discovery process to obtain discovery in excess of the limitations
set by this court in the Rule 16 Scheduling Order (docket no. 53),
thereby gaining an unfair advantage over Defendants, who do not
have the parallel ability to submit CORA requests to Plaintiff. The
Rule 16 Scheduling Order (docket no. 53) was entered by this court
after carefully considering the proffers by the parties as to the need
and the amount of discovery that was reasonable and necessary in
order to address the merits of this case at the Scheduling
Conference in light of Fed. R. Civ. P. 1 and 16 and the Civil Justice
Reform Act.

Rule 1 of the Federal Rules of Civil Procedure states: Scope and
Purpose:
These rules govern the procedure in all civil actions and
proceedings in the United States district courts, except as
stated in Rule 81. They should be construed and

6
administered to secure the just, speedy, and
inexpensive determination of every action and
proceeding.
Fed. R. Civ. P. 1 (emphasis added).

The word “administered” was added to Rule 1 in 1993 to indicate
the affirmative duty of courts to exercise the authority conferred
upon them by the Rules in ensuring that civil litigation is resolved
not only fairly, but also without undue cost or delay. Accordingly,
allowing Plaintiff to ignore this court’s reasonable discovery limits by
submitting CORA requests, or soliciting members of Plaintiff to
make such CORA requests, thwarts Rule 1 by allowing Plaintiff to
impose unnecessary expenses on Defendants while itself avoiding
any expense beyond that contemplated under the limitations of the
Scheduling Order (docket no. 53). This court has previously
ordered, in open court, that Plaintiff and Plaintiff’s counsel shall
share all information obtained during the discovery process to
Plaintiff’s members in order to avoid duplicative, unnecessary, and
costly CORA requests by individual members to Defendants.
9.

That Plaintiff’s argument that paragraph 8(d)(2) - Discovery
Limitations - in the Rule 16 Scheduling Order (docket no. 53) is a
violation of the First Amendment is without merit. The Tenth Circuit

7
has stated that no general First Amendment right to access
government records exists. See 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
government 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) (“[T]here is no constitutional right, and
specifically no First Amendment right, of access to government
records.”).
10.

That public record access in Colorado under CORA is a creature of
state statute, and such statute creates such a right to public record
access but also imposes specific limitations on such right. In
particular, CORA provides at § 24-72-204, 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:

...

8
(c)

Such inspection is prohibited by rules
promulgated by the supreme court or by the
order of any court. . . .

§ 27-72-204, C.R.S. (emphasis added).
11.

That Plaintiff’s argument that CORA only allows a court to issue an
order prohibiting access to specific public records upon a request
from a records custodian under § 24-72-204(6) [docket no. 46 at p.
5] is misplaced. The plain language in CORA, as stated above in
paragraph 10, contains no such limitation, and neither § 24-72204(6) nor § 24-72-204(1)(c), C.R.S., reference the other.
Accordingly, the provision in CORA that allows access to public
records to be limited by the order of any court should be viewed
giving commonly-accepted meaning to such language. Where the
statutory language used is clear, there is no need for this court to
use interpretive rules of statutory construction but should apply the
statute as written. See Neiberger v. Hawkins, 70 F. Supp.2d 1177,
1184 (D. Colo. 1999). Further, the order of any court controls a
party’s access to public records in civil litigation regardless of
whether CORA allows or prohibits access to the same records.
See Martinelli v. District Court In & For City & County of Denver,
612 P.2d 1083, 1093 (Colo. 1980); Morrison v. City & County of
Denver, 80 F.R.D. 289, 291-92 (D. Colo. 1978). Nothing in CORA

9
prohibits a federal district court from entering and enforcing its own
discovery limits in a case filed in the federal district court.
12.

That Plaintiff’s argument that paragraph 8(d)(2) - Discovery
Limitations - in the Rule 16 Scheduling Order (docket no. 53)
prohibits Plaintiff or its members from meeting with the Colorado
Secretary of State is without merit. Nowhere in paragraph 8(d)(2)
are the Plaintiff or Plaintiff’s members prohibited from meeting with
the Colorado Secretary of State.

13.

That the court does not agree with the Plaintiff’s argument that
paragraph 8(d)(2) - Discovery Limitations - in the Rule 16
Scheduling Order (docket no. 53) is a “defacto injunction.” Instead,
inclusion of paragraph 8(d)(2) is an exercise of the court’s inherent
authority to control and limit the discovery process. Plaintiff’s legal
support of its argument in the form of MAI Basic Four, Inc. v. Basis,
Inc., 962 F.2d 978, 981 (10th Cir. 1992), and United States v.
McVeigh, 157 F.3d 809, 813 (10th Cir. 1998), is inapposite to this
case. See subject motion (docket 46) at p. 6. This court is well
aware of its authority per the Order of Reference (docket no. 6) and
the requirements for injunction relief under Fed. R. Civ. P. 65, see,
e.g., Salt Lake Tribune Pub. Co., LLC v. AT & T Corp., 320 F.3d
1081, 1099 (10th Cir. 2003).

In this case, paragraph 8(d)(2) is an Order on limitation on

10
discovery and not a “defacto injunction” as suggested by Plaintiff,
which is well within my legal authority as the Magistrate Judge per
the Order of Reference (docket no. 6) to enter.
14.

That the court, however, finds some merit to the Plaintiff’s argument
that paragraph 8(d)(2) - Discovery Limitations - in the Rule 16
Scheduling Order (docket no. 53) is overbroad because it reaches
members who are not parties to this action. See Sherwin-Williams
Co. v. Spitzer, 2005 WL 2128938 (N.D.N.Y. Aug. 24, 2005)
(treating association individual members as non-parties for
purposes of discovery); New Hampshire Motor Transport Ass’n v.
Rowe, 324 F. Supp.2d 231 (D. Maine 2004) (same). Consequently,
the language of paragraph 8(d)(2) will be slightly modified to delete
mention of the association members.

That the court, however, cautions the Plaintiff and its members that
discovery in this case must be conducted in an orderly fashion, that
this court will not tolerate discovery abuses, and that this court will
not allow the Plaintiff and its members to use discovery and/or
CORA requests as a sword and a shield. See Sherwin Williams
Co., 2005 WL 2128938, at *10. See also New Hampshire Motor
Transport Ass’n, 324 F. Supp.2d at 237 (court indicated it would
reconsider its ruling as to the third prong of the associational
standing test if it turned out that the defendant’s discovery was

11
excessively inefficient or hampered by virtue of the associations’
conduct). Plaintiff and Plaintiff’s counsel shall make available to
Plaintiff’s members all information obtained during the discovery
process in order to avoid duplicative and unnecessary CORA
requests to the Defendants by individual members. If during the
discovery process any party believes there has been an abuse of
the CORA process with respect to requests related to this case,
i.e., by members of the Plaintiff’s association, an appropriate
motion may be filed, and today’s ruling removing mention of the
members in paragraph 8(d)(2) in the Scheduling Order may very
well be reconsidered.
ORDER
WHEREFORE, based upon these findings of fact and conclusions of law this
court ORDERS:
1.

That the Emergency Motion of Citizen Center for Magistrate’s
Reconsideration and Stay Pending Reconsideration of Part of the
Court’s June 4 Scheduling Order (docket no. 46) is GRANTED to
the extent that the language of paragraph 8(d)(2) - Discovery
Limitations - in the Rule 16 Scheduling Order (docket no. 53) shall
now read:
Plaintiff Citizen Center shall refrain during discovery in this
case from submitting Colorado Open Records Act (“CORA”)

12
requests to any of the Defendants for inspection and copying
of public records that are related to this case and otherwise
obtainable using discovery in order to prevent Plaintiff from
using CORA as a means to exceed the discovery limits
included in this Order; and
2.

That each party shall pay their own attorney fees and costs for this
motion.

Done this 16th day of July 2012.
BY THE COURT
s/Michael J. Watanabe
MICHAEL J. WATANABE
U.S. MAGISTRATE JUDGE