March 8, 2010

BRANNAN LAWSUIT continues. Last week’s edition closed out with the Court’s Bench Order on May 18, 2009 for the Parties to file a Joint Status Report on the Record for Rule 106 Review (the Joint Status Report).

For simplicity purposes, a Joint Status Report is one pleading wherein each party to a lawsuit informs the Court of their status in the litigation, and each party informs the Court of their agreement or disagreement with each other’s position.

A footnote to this Joint Status Report indicated “Counsel for Shack West, LLC reviewed and approved a previous version of this pleading but he was not available to confirm whether he approved the final changes. None of those final changes affected Shack West LLC’s response in Paragraph 6.”

Brannan and the Wolf Parties made an additional request for a status conference to resolve the disputes about the completeness of the record. (As a heads up, that request was denied by the Court on July 13, 2009. The Court’s complete ruling follows as the closing to today’s edition.)

Acknowledging the recording difficulties that occurred during the public hearings on June 17th and 23rd, 2008, the Joint Order advises the Court that “the Parties have reviewed the available information and have reconstructed a transcript of those two days that all have agreed to accept for purposes of Rule 106 review,” and that a final index of documents (and the documents referenced therein) submitted to the County Commissioners is being assembled for inclusion as part of the record on review, with achievement expected “in the near future.”

Even with that agreement on the record to accept for purposes of the Rule 106 review, Brannan and the Wolf Parties then go on to advise the Court of their objection “to the record as being incomplete for Rule 106 review” because:

1) The record does not contain a reconstruction of the County Commissioners’ so-called “executive sessions” during which the MMRR Quarry was discussed; and

2) The record has not been supplemented with facts outside of the public record relevant to Brannan’s Open Meetings Law claim that the County Defendants made their decision on the MMRR Quarry in private.

As to the first objection, Brannan and the Wolf Parties claim the Commissioners failed to meet the statutory requirements for convening the executive sessions – as to June 24, 2008 “there is no record of the statutory citation authorizing the executive session; no record of the particular matter to be discussed in the executive session; no description of the specific legal question to be addressed by counsel and no record of any vote to go into executive session.” Brannan and the Wolf Parties state the same failings as to the July 1, 2008 session, except that “the general matter was identified . . . but the specific legal question was not described.”

Brannan and the Wolf Parties then complain that the County Defendants “do not offer any evidence that the sessions were convened as required by the statute,” and then asserts case law that because of the failings, “ those sessions have to be treated as public hearings, and that everything stated or discussed during those sessions must be treated as if they were stated or discussed during a public hearing (citations omitted), and discussions that occurred during those sessions “must be included as part of the record for Rule 106 review.”

Because such sessions are not recorded, Brannan and the Wolf Parties assert that “statements made and documents reviewed or discussed during those sessions will have to be reconstructed to complete the record.”

Brannan and the Wolf Parties then sought to have the Court order the individuals present during the executive sessions to give testimony in front of the Court or through discovery. Brannan and the Wolf Parties then state, in consideration of the Court’s schedule, their preference is for discovery, expressing anticipation that such discovery could be completed relatively quickly since the executive sessions were quite short – “20 minutes on June 24 during which the procedures to review the record were discussed; and less than 25 minutes on July 1 during which the process for appealing the Commissioners’ decision was discussed.”

Brannan and the Wolf Parties then “admonish” the Court that “Discovery (or testimony in court) is required here to reconstruct that part of the Commissioners’ public hearing on the MMRR Quarry that was neither held in public nor recorded,” and without reconstruction of the sessions, “Brannan and the Wolf Parties object to the completeness of the record for Rule 106 review.” (Writer’s comment: Note the assumption that Brannan and Wolf make – assuming into existence facts that have no substantiation.)

As to Brannan’s second objection, Brannan again raises the issue that “The record has not been supplemented with facts outside of the public record relevant to Brannan’s Open Meetings Law claim that the County Defendants and their decision on the MMRR Quarry in private.”

Acknowledging that the matter has been briefed and decided by the Court, Brannan and the Wolf Parties raise it again to preserve the issue on appeal, and reconsideration of that decision is not being requested at this time.

Brannan then acknowledges the Court’s ruling on the Open Meetings Law claim, the Court’s denial of discovery in this case and “proceeding with the Colorado Rule of Civil Procedure 106 claim (C.R.C.P. 106 claim) and a review based solely on the record.”

Assertion is then made by Brannan and the Wolf Parties that the County violated Open Meetings Law by improperly announcing two executive sessions held by the Board of County Commissioners – the sessions on June 24 and July 1, 2008, and now proceeds to ask for discovery on what was said at these two executive sessions, and would like to supplement the 106 record review with the discovery.

The County’s asserts that Brannan’s objections are simply an attempt to circumvent the Court’s May 18, 2009 Order. An affidavit executed by County Attorney James J. Petrock explains that the executive sessions were for the purpose of giving legal advice to the Commissioners since none of the Commissioners had been involved in such a highly contested county administrative hearing, explanation was given “on what a C.R.C.P. 106 proceeding involved, its legal elements and that the Board was limited in making its decision to reviewing materials submitted in the record of the hearing.”

The Petrock affidavit then provided what took place in the July 1, 2008 executive session – further discussion of the C.R.C.P. 106 procedure, what party could file one, its legal elements and the Board was told it was “limited in making its decision to review of materials submitted in the record of the hearing. That session lasted 20 minutes.

In an apparent attempt to be transparent, Petrock advised the Court that the Board was provided a list of witnesses and subject matter of their testimony in the order presented at the June 19 and 23 hearing, and attached that list to the affidavit. That same list was also provided to Brannan counsel on September 10, 2008 as part of the response to an Open Records request by Brannan. Petrock states to the Court that no decision of the Board on Brannan’s application was made at either of these executive sessions.

The County then emphasizes that it does not consider the Joint Status Report as Brannan’s Motion expressing its dissatisfaction with the Petrock sworn affidavit. The County states Brannan must file such a Motion “requesting that this claim be allowed in this C.R.C.P. 106 proceeding, and requesting that the Court ignore its May 18, 2009 Order and allow discovery on this claim and permit said discovery to supplement the C.R.C.P. 106 record review.”

On this point, the County reserved its right to respond to any allegations raised by Brannan and the Wolf Parties in such a motion and “did not waive any arguments it may make to any such claim or motion nor any privileges or protections that apply.” On these facts, the County states a status conference is not warranted or necessary given these facts. The County made the additional statement that “If Brannan and Wolf choose to make this an issue in this case, they must seek the relief as described above by the County. (That’s just what Brannan and Wolf did on July 13, 2009.)

The City of Black Hawk (the City) did join in paragraphs 1 and 2 as to the record for the 106 Review, but refused to take a position on the issues raised by Brannan and the Wolf Parties as to the executive session of June 24 and July 1, 2008.

Shack West, LLC did not take a position as to the executive sessions and stated that Shack West, LLC “believes that the Court’s ruling on the Determination on Timing of its Open Meeting Claim included the discovery related thereto.”

Shack West, LLC did join in the Joint Status Report as to the “Record that is being produced with the submittals by the Parties,” but states that it would like to review the final “mock up” of the Record before it is filed, which can be resolved with a joint meeting of the Parties without the necessity of a Status Conference.

In the Conclusion, Brannan and the Wolf Parties requested a status conference to resolve the disputes about the completeness of the record.

On July 13, 2009, the Court’s ruling:

“The Court is grateful to all counsel for filing this joint statement. After reviewing it and its 4 attachments, the Court concludes that no status conference need be set. It appears that the 2 executive sessions were properly convened and thus no grounds exist to convert them to public sessions warranting meeting public disclosure requirements. If Petitioners disagree, and believe a transcript of the public proceedings held would disclose non-compliance with Sec. 24-6-402(4) before the beginning of the executive sessions, they may proceed by motion under Sec. 24-72-204(5.5).”

Mark Twain once said: “The rule is perfect – in all matters of opinion our adversaries are insane.”

Doris Beaver