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090409TCreply

090409TCreply

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Published by Circuit Media

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Published by: Circuit Media on Sep 05, 2009
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DISTRICT COURT, BOULDER COUNTY,COLORADO
Court Address: 1777 Sixth StreetBoulder, CO 80903_______________________________________________
Plaintiffs:
RACHEL CARTER, a Colorado Citizen; and, LEHMANCOMMUNICATIONS CORPORATION, a Coloradocorporation, doing business as the
 Longmont Daily Times-Call
.
v.Defendant:
THE CITY COUNCIL OF THE CITY OF LONGMONT,COLORADO_______________________________________________
Attorneys for Plaintiffs:
Steven D. Zansberg, #26634Adam M. Platt, #38046LEVINE SULLIVAN KOCH & SCHULZ, L.L.P.1888 Sherman Street, Suite 370Denver, Colorado 80203Telephone No.: (303) 376-2400Facsimile No.: (303) 376-2401szansberg@lskslaw.comaplatt@lskslaw.com
COURT USE ONLY
_____________________________Case Number: 09CV783Division:
REPLY TO AFFIRMATIVE DEFENSES
Pursuant to C.R.C.P. 12(a), the plaintiffs, Rachel Carter and Lehman CommunicationsCorp., 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 theAnswer 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 ¶¶ 1through 35 of the Complaint, the plaintiffs have stated a valid claim for relief under the ColoradoOpen Meetings Law (“COML”), § 24-6-402, C.R.S., and specifically for an order directing that
{00238305;v2}
 
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 adviceon specific legal questions,” § 24-6-402(4)(b), C.R.S., exceeded the bounds of that limitedstatutory authorization, and, as has been conceded by the City Council, violated the COML byincluding 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 CityCouncil 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 initiatelitigation 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 settlementof a lawsuit must be made in a meeting open to the public);
 Zorc v. City of V ero 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 voteon whether to file certain tax appeals and to retain counsel to do so was unlawful “formalaction,” 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 standingto assert their request for relief herein. The COML expressly authorizes any citizen to file thistype of action to invoke the district court’s authority to determine (1) whether substantialgrounds exist to believe that a violation of the COML occurred; and (2) upon finding that suchgrounds exist, to conduct an
in camera
review of the recording of the executive session and torelease as a public record any portions of the recording that demonstrate a violation of theCOML.
See
§§ 24-6-402(2)(d.5)(II)(C) & 24-72-204(5.5), C.R.S. Unquestionably, any memberof the public who was improperly denied access to a discussion by a local public body thatshould have been conducted in a public meeting, has suffered an injury in fact that is redressibleby an order of this Court pursuant to the COML.
See
§ 24-6-402(9), C.R.S. (granting “anycitizen 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 languageof the [COML] that it confers certain legally protected interests on all citizens of the state.”);
seealso 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, Coloradocourts look to Florida decisions as particularly instructive in interpreting and applying provisionsof the COML.
See James v. Board of Comm’rs
, 611 P.2d 976, 977 (Colo. 1980). The pertinenttest of Florida’s states is as follows: “[N]o resolution, rule, or formal action shall be consideredbinding except as taken or made at [an open, public] meeting.”
See
Fla. Stat. Ann. § 286.011(1).
{00238305;v2}
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that the [open meetings] law has been violated constitutes an irreparable public injury” for whichthere 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 MeetingsAct: “
Our citizens are entitled to more than a result. They are entitled not only to know whatgovernment 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 CityCouncil’s position in this litigation is untenable as a matter of law. The City Council asks thisCourt to find that the “common law” privilege for attorney-client communications is a sufficientbasis 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 advicefrom the attorney and even including decision-making, adoption of positions, and, arguably, evenformal action by a public body having received such legal advice. If this argument had anymerit, the statutory provision sited above, unambiguously limiting the authority of local publicbodies to meet in closed sessions with their attorneys
only
“for purposes of 
receiving
legal adviceon specific legal questions” (indeed, the entire Open Meetings Law) would be rendered a deadletter. Thus, adopting the City’s position would violate the canon of statutory construction thatno statutory provision is to be rendered nugatory or superfluous; each provision is presumed tohave been intended to have independent meaning and effect.
See
 
Slack v. Farmers Ins. Exch.
, 5P.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 favorof 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 OpenMeetings 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 thatthe statute “reflects the considered judgment of the Colorado electorate that democraticgovernment best serves the commonwealth if 
its decisional processes
are open to publicscrutiny”) (emphasis added);
 Bagby v. School Dist. No. 1, Denver 
, 186 Colo. 428, 434, 528 P.2d1299, 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 concreteexample: Under the conception put forth by the defendant, the City Council would be permittedto announce that it intended to receive legal advice from its counsel concerning the budget forthe fiscal year 2010. After having made such announcement, and voted to convene the executivesession, the City Council could begin its executive session by asking its counsel behind closeddoors, “Do we have the legal authority to allocate city resources in preparing the budget for theupcoming 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 sessionironing out the budget for the upcoming calendar year, all with the attorney present, sitting
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