DISTRICT COURT, BOULDER COUNTY,

COLORADO
Court Address: 1777 Sixth Street
Boulder, CO 80903
_______________________________________________
Plaintiffs:
RACHEL CARTER, a Colorado Citizen; and, LEHMAN
COMMUNICATIONS CORPORATION, a Colorado
corporation, doing business as the Longmont Daily Times- COURT USE ONLY
Call. _____________________________
v.

Defendant: Case Number: 09CV783

THE CITY COUNCIL OF THE CITY OF LONGMONT,
COLORADO Division:
_______________________________________________
Attorneys for Plaintiffs:
Steven D. Zansberg, #26634
Adam M. Platt, #38046
LEVINE SULLIVAN KOCH & SCHULZ, L.L.P.
1888 Sherman Street, Suite 370
Denver, Colorado 80203
Telephone No.: (303) 376-2400
Facsimile No.: (303) 376-2401
szansberg@lskslaw.com
aplatt@lskslaw.com

REPLY TO AFFIRMATIVE DEFENSES

Pursuant to C.R.C.P. 12(a), the plaintiffs, Rachel Carter and Lehman Communications
Corp., d/b/a the Longmont Daily Times-Call (hereinafter, collectively, the “Times-Call”),
through their undersigned counsel, hereby reply to the Affirmative Defenses set forth in the
Answer of the City Council of the City of Longmont, Colorado (hereinafter, the “City Council”).

FIRST AFFIRMATIVE DEFENSE

In reply to ¶ 28 of the Answer, the Times-Call states that for the reasons set forth in ¶¶ 1
through 35 of the Complaint, the plaintiffs have stated a valid claim for relief under the Colorado
Open Meetings Law (“COML”), § 24-6-402, C.R.S., and specifically for an order directing that

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the recording of the executive session of the Longmont City Council held on June 23, 2009,
which was expressly convened for the authorized and limited purpose to “receiving legal advice
on specific legal questions,” § 24-6-402(4)(b), C.R.S., exceeded the bounds of that limited
statutory authorization, and, as has been conceded by the City Council, violated the COML by
including a “substantial discussion of any matters not enumerated” in that provision, see § 24-6-
402(2)(d.5)(II)(C), C.R.S., and included further the “adoption of . . . a position” by the City
Council to instruct the City Attorney to file an appeal of an adverse judgment. See, e.g., City of
McCall v. Buxton, 201 P.3d 629, 639 (Idaho 2009) (holding that decision by a city to initiate
litigation in a court of law is one that must be made in a public meeting); Farrell v. Board of
Comm’rs of Lemhi Cty., 64 P.3d 304, 315 (Idaho 2002) (decision to accept proposed settlement
of a lawsuit must be made in a meeting open to the public); Zorc v. City of Vero Beach, 722 So.
2d 891, 901 (Fla. Ct. App. 1998) (same, under Florida’s open meetings law); 1 Houman v. Mayor
and Council of Borough of Pompton Lakes, 382 A.2d 413, 424-27 (N.J. Super. 1977) (final vote
on whether to file certain tax appeals and to retain counsel to do so was unlawful “formal
action,” since statute authorized only “discussion” in executive session, not “deciding a course of
action”).

SECOND AFFIRMATIVE DEFENSE

In reply to ¶ 29 of the Answer, the plaintiffs state that they unquestionably have standing
to assert their request for relief herein. The COML expressly authorizes any citizen to file this
type of action to invoke the district court’s authority to determine (1) whether substantial
grounds exist to believe that a violation of the COML occurred; and (2) upon finding that such
grounds exist, to conduct an in camera review of the recording of the executive session and to
release as a public record any portions of the recording that demonstrate a violation of the
COML. See §§ 24-6-402(2)(d.5)(II)(C) & 24-72-204(5.5), C.R.S. Unquestionably, any member
of the public who was improperly denied access to a discussion by a local public body that
should have been conducted in a public meeting, has suffered an injury in fact that is redressible
by an order of this Court pursuant to the COML. See § 24-6-402(9), C.R.S. (granting “any
citizen of this state” to the right to enforce the requirements of the COML); WorldWest LLC v.
Steamboat Springs Sch. Dist. RE-2 Bd. of Educ., Case No. 07-CA-1104, 37 Media L. Rep.
(BNA) 1663, slip op. at 8 (Colo. App. Mar. 26, 2009) (“[W]e conclude from the plain language
of the [COML] that it confers certain legally protected interests on all citizens of the state.”); see
also Citizens Progressive Alliance v. Sw. Water Conservation Dist., 97 P.3d 308, 311 (Colo.
App. 2004) (holding that SWCD “had standing to seek declaratory and injunctive relief” because
“SWCD is an entity whose rights were affected by a request made pursuant to CORA”); accord
Town of Palm Beach v. Gradison, 296 So. 2d 473, 477 (Fla. 1974) (holding that a “mere showing

1
Because the original COML was modeled after Florida’s Sunshine Act, Colorado
courts look to Florida decisions as particularly instructive in interpreting and applying provisions
of the COML. See James v. Board of Comm’rs, 611 P.2d 976, 977 (Colo. 1980). The pertinent
test of Florida’s states is as follows: “[N]o resolution, rule, or formal action shall be considered
binding except as taken or made at [an open, public] meeting.” See Fla. Stat. Ann. § 286.011(1).

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that the [open meetings] law has been violated constitutes an irreparable public injury” for which
there is standing to sue); Acker v. Texas Water Comm’n, 790 S.W.2d 299, 300 (Tex. 1990)
(recognizing standing for violations of closed-meeting provisions of the Texas Open Meetings
Act: “Our citizens are entitled to more than a result. They are entitled not only to know what
government decides but to observe how and why every decision is reached.”).

THIRD AFFIRMATIVE DEFENSE

In reply to ¶¶ 30 through 45 of the Answer, the plaintiffs state as follows: The City
Council’s position in this litigation is untenable as a matter of law. The City Council asks this
Court to find that the “common law” privilege for attorney-client communications is a sufficient
basis to shield any and all discussions between a local public body and counsel to that body,
including discussions among the Council members distinct from the receipt of any legal advice
from the attorney and even including decision-making, adoption of positions, and, arguably, even
formal action by a public body having received such legal advice. If this argument had any
merit, the statutory provision sited above, unambiguously limiting the authority of local public
bodies to meet in closed sessions with their attorneys only “for purposes of receiving legal advice
on specific legal questions” (indeed, the entire Open Meetings Law) would be rendered a dead
letter. Thus, adopting the City’s position would violate the canon of statutory construction that
no statutory provision is to be rendered nugatory or superfluous; each provision is presumed to
have been intended to have independent meaning and effect. See Slack v. Farmers Ins. Exch., 5
P.3d 280, 284 (Colo. 2000); Colorado Compensation Ins. Auth. v. Jorgensen, 992 P.2d 1156,
1163 (Colo. 2000).

Moreover, the Colorado Supreme has that the COML is to be construed broadly in favor
of its purpose of providing the maximum extent possible of public access to the meetings of
governmental bodies. See Cole v. State, 673 P.2d 345, 349 (Colo. 1983) (“As a rule, [the Open
Meetings Law] should be interpreted most favorably to protect the ultimate beneficiary,
the public.”); Benson v. McCormick, 195 Colo. 381, 383, 578 P.2d 651, 653 (1978) (noting that
the statute “reflects the considered judgment of the Colorado electorate that democratic
government best serves the commonwealth if its decisional processes are open to public
scrutiny”) (emphasis added); Bagby v. School Dist. No. 1, Denver, 186 Colo. 428, 434, 528 P.2d
1299, 1302 (1974) (same, because the COML was “designed precisely to prevent the abuse of
secret or ‘star chamber’ sessions of public bodies”) (citation omitted) (emphasis in original).

The patent absurdity of the City’s position is best demonstrated through one concrete
example: Under the conception put forth by the defendant, the City Council would be permitted
to announce that it intended to receive legal advice from its counsel concerning the budget for
the fiscal year 2010. After having made such announcement, and voted to convene the executive
session, the City Council could begin its executive session by asking its counsel behind closed
doors, “Do we have the legal authority to allocate city resources in preparing the budget for the
upcoming calendar year?” The City Attorney could then respond, “Yes, you do.” Thereafter,
the City Council could engage in hours, days, or weeks of discussion inside an executive session
ironing out the budget for the upcoming calendar year, all with the attorney present, sitting

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silently, and, under the City’s position, the entire discussion would be shielded by the common
law privilege for attorney-client communications. Moreover, as envisioned by the City Council,
the Court would be barred by the mere assertion of the privilege from listening to the recording
to determine whether any COML violation had occurred.

Wholly lacking from the City’s Affirmative Defense, and, indeed, from all of its lengthy
“Answer,” is any reference to the well recognized principle that the common law is abrogated
through clear and unambiguous statutes. See Vigil v. Franklin, 103 P.3d 322, 329 (Colo. 2004)
(finding statute to have abrogated common law where contrary finding would render statute a
nullity); Lunsford v. W. States Life Ins., 908 P.2d 79, 84 (Colo.1995) (“[W]hen the legislature
speaks with exactitude, we must construe the statute to mean that the inclusion or specification of
a particular set of conditions necessarily excludes others.”).

Here, the General Assembly has abrogated the attorney-client privilege that may be
invoked by public bodies by enacting a statute of statewide application (see infra discussion of
Fourth Affirmative Defense) requiring that all meetings of public bodies at which public
business is discussed shall be open to the public unless specific statutory exemptions apply.
With respect to meetings between a local public body – such as the City Council – and its
attorneys, the General Assembly has legislatively confined the scope of the attorney-client
privilege to one narrow category: discussions among three or more members (or a quorum) of
the local public body and its counsel may be conducted behind closed doors only for the purpose
of “receiving legal advice on specific legal questions.” See § 24-6-402(4)(b), C.R.S. (emphasis
added).

That this statutory provision clearly and unambiguously abrogates the common law
privilege for attorney-client communications of all other kinds is evident from the remainder of
the provision, which states that the mere presence of an attorney at a discussion conducted by a
local public body does not render that discussion a lawful executive session. See § 24-6-
402(4)(b), C.R.S. Put simply, because the COML prohibits the Council from having a closed-
door meeting with its counsel for any discussion other than to “receive legal advice on specific
legal questions,” there can be no lawful “confidential” communications with counsel (a
necessary prerequisite for the common law attorney-client privilege. Id. (emphasis added); see
also Gordon v. Boyles, 9 P.3d 1106, 1123 (Colo. 2000) (“Communications between an attorney
and his client that are not confidential . . . are not protected.”); Lanari v. People, 827 P.2d 495,
499 (Colo. 1992) (attorney-client privilege “applies only to statements made in circumstances
giving rise to a reasonable expectation that the statements will be treated as confidential.”). 2

Submitted herewith for the Court’s convenience is a decision issued by Judge Nancy
Hopf of the Arapahoe County District Court in a case involving the Board of County

2
Prior to an amendment to the COML this past legislative session, state public bodies’
authority to have closed door discussions with counsel was even more narrowly confined by the
COML: state public bodies were authorized to meet with attorneys only to discuss legal matters
in connection with “pending or imminent litigation involving the public body.”

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Commissioners of Arapahoe County, Colorado. See Exhibit ___ (Order Granting Inspection,
Rouse v. Board of County Commissioners, Arapahoe Cty. Dist. Ct. No. 03CV3029, Dec. 13,
2003). There, too, the BOCC met with its counsel to receive legal advice on whether to refer a
matter involving the Clerk and Recorder for Arapahoe County to the County Ethics Commission.
Following receipt of that legal advice, the BOCC thereafter engaged in discussion and reached a
decision (“adopted a position”) on whether to refer the complaint to the County Ethics
Commission. Upon being presented with these facts, Judge Hopf determined that there was
sufficient grounds to conduct an in camera review of the recording, and upon review of that
recording determined that only a small portion of the meeting involved the authorized receipt of
legal advice from the County Attorney (which portion of the tape was withheld from public
inspection), and that the vast bulk of the discussion involved a discussion of the pros and cons
among the County Commissioners that did not constitute receipt of legal advice, and was
therefore an unlawful discussion by the County Commissioners in violation of the COML.

FOURTH AFFIRMATIVE DEFENSE

In reply to ¶¶ 46 through 48 of the defendant’s Answer, the plaintiffs state as follows:

For the reasons set forth above and in the Complaint which has been partially answered, 3 the
plaintiffs have met their burden of showing “grounds sufficient to support a reasonable belief”
that the City Council engaged in a substantial discussion other than “receiving legal advice on
specific legal questions.” The City has admitted in its Answer, ¶ 14, that it reached a decision, in
the course of an executive session, to instruct the City Attorney to file an appeal in the Colorado
Court of Appeals of an adverse judgment it had received – which, to use the City’s own
terminology, “differs qualitatively” from a mere “discussion about litigation strategy” – and
constitutes a decision, or adoption of a policy. See City’s Answer ¶ 14 (admitting that the City
Council “engaged in informal decision-making through discussions and consensus building”)
(emphasis added). See Worldwest LLC v Steamboat Springs Sch. Dist. RE-2, Case No. 07-CA-
1104 (Colo. Ct. App. Mar. 26, 2009) (attached to Complaint in Appendix of Additional Case
Authority) at 27 (Carparelli, J., concurring) (concluding that the School Board “violated the
COML by adopting a position in closed session” with its counsel present, when it came out of
the closed meeting and announced, without any public discussion, that it had decided to instruct
the Superintendent to turn over survey results).

3
Inexplicably, in ¶ 18 of its Answer, the City claims it is “without information and belief
to confirm or deny” whether the Mayor of the City and Councilmember Mary Blue actually
made the statements attributed to each of them in ¶¶ 26 and 27 of the Complaint and in the sworn
Affidavit of Rachel Carter (which remains unrebutted evidence). Nevertheless, because the
Answer otherwise admits that the City Council “engaged in informal decision-making through
discussions and consensus building,” in the course of a closed meeting, Answer ¶ 14, the City
has through its Answer provided sufficient grounds to believe that the City Council did, as
alleged in the Complaint, adopt a position and also engaged in a substantial discussion that was
other than “receiving legal advice on specific legal questions,” warranting in camera review of
the executive session recording.

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 FIFTH AFFIRMATIVE DEFENSE

In reply to ¶¶ 49 through 55 of the Answer, the plaintiffs state as follows: The City’s
assertion that the Longmont Home Rule Charter and Municipal Code supersedes or takes
precedence over the Colorado Open Meetings Law is utterly without merit. As stated in its
preamble, the Colorado Open Meetings Law is a statute of statewide application and concern.
See § 24-6-401, C.R.S. (“It is declared to be a matter of statewide concern and the policy of this
state that the formation of public policy is public business and may not be conducted in secret.”).

When, as here, the discussions of a local public body have clear and direct impact upon
citizens outside of that home rule city, including the citizens of Firestone, Colorado, and the
citizens of Weld County, Colorado, the Open Meetings Law clearly trumps any home rule
charter provision to the contrary. See City of Northglenn v. Ibarra, 62 P.3d 151, 161 (Colo.
2003) (city ordinance restricting sex offender housing preempted because it regulated matter of
statewide concern: juvenile delinquents housed with foster care families regulated under state
law); Jam Restaurant v. City of Longmont, 140 P.3d 192, 194 (Colo. App. 2006) (Longmont
zoning ordinance regulating adult establishments overridden by state’s interest in protecting
property rights as defined in statute).

Moreover, the fact that the Longmont Municipal Code authorizes the City Attorney to
“settle threatened or pending litigation” against the City without obtaining prior Council
approval is inapposite to the legal questions presented here. Whether the City Council is, or is
not, required to “adopt a position” with respect to the initiation of an appeal (which is different
than the charter provision authorizing settlement of a lawsuit, in any event) does not make it any
less a violation of the Open Meetings Law that the City nevertheless adopted such a position.
The Open Meetings Law prohibits a local public body from adopting any position in an
executive session, whether it is required to do so or not. “Formal action” is a separate and
independent prohibited act under the executive session provision.

Moreover, separate and distinct from the City’s having admitted that it did, through
“informal decision-making,” make a decision and thereby “adopted a position,” the City has also
conceded in its Answer (¶ 14) that the City Council “engaged in . . . discussions and consensus
building” that was separate from its “receiving legal advice on specific legal questions,” conduct
that independently violates the COML.

CONCLUSION

Having now replied to each of the Affirmative Defenses asserted in the City’s Answer,
the pleadings are closed pursuant to C.R.C.P. 7, and the plaintiffs have demonstrated, through
those pleadings, that there is “substantial grounds to believe that” the City Council adopted a
position and also engaged in “substantial discussion” of topics not authorized by the COML
during its executive session of June 23, 2009. Accordingly, the Times-Call respectfully requests

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that the Court review the recording of that executive session pursuant to §§ 24-6-
402(2)(d.5)(II)(C) and 24-7-204(5.5), C.R.S.

Respectfully submitted this _____ day of September, 2009.

By s/ Steven D. Zansberg
Steven D. Zansberg
Adam M. Platt
LEVINE SULLIVAN KOCH & SCHULZ, L.L.P.

Attorneys for Plaintiffs

Rachel Carter, and Lehman Communications
Corporation d/b/a/ the Longmont Daily Times-Call

THIS REPLY TO AFFIRMATIVE DEFENSES WAS FILED WITH THE

COURT THROUGH THE LEXIS/NEXIS FILE-AND-SERVE ELECTRONIC
FILING PROCEDURES, UNDER C.R.C.P. 121(C), § 1-26.

AS REQUIRED BY THOSE RULES, THE ORIGINAL SIGNED COPY OF THIS

PLEADING IS ON FILE WITH LEVINE SULLIVAN KOCH & SCHULZ,
L.L.P.

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 CERTIFICATE OF SERVICE

I hereby certify that on this _____ day of September, 2009, a true and correct copy of the
foregoing REPLY TO AFFIRMATIVE DEFENSES was served on the following counsel
through the Lexis/Nexis CourtLink electronic court filing system, pursuant to C.R.C.P. 121(c), §
1-26:

Eugene Mei, Esq.

James W. Rourke, Esq.
Longmont City Attorney’s Office
408 3rd Ave.
Longmont, CO 80501

Corey Y. Hoffmann, Esq.

Hilary M. Graham, Esq.
Hayes, Phillips, Hoffmann & Carberry, P.C.
1350 17th St., #450
Denver, CO 80202-1517

s/ Marla D. Kelley

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