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July 23, 2009 01:05 AM UTC
23 Comments
If this was just a negotiated settlement, what protects the university from another set of plaintiffs stepping up and asking for their own $19,000?
Were these agencies certified as a class action suit, and if so, what measures were taken to include other members of that class?
If CSU is handing out money for people who agree not to sue them, then make me an offer and put me on the list.
In this case, the only remedy the public has to correct an open meetings violation is to bring suit under the Colorado Open Meetings Law. One “punishment” included in the law is that if a government loses an open meetings suit, it has to pay the legal bills of the plaintiffs. That’s so that the plaintiffs aren’t punished for successfully exercising their rights.
So this isn’t a class action suit. The only money changing hands is to pay attorney fees. So you can feel free to bring any COML action you feel appropriate. But you have to be prepared to pay your attorney fees if you’re not successful. Filing frivolous COML actions isn’t a get-rich-quick scheme I would recommend.
The Coloradoan has it up first:
http://www.coloradoan.com/news…
Tried to listen and gave up after 30 seconds. Reporting is no job for amateurs!
I’d encourage everyone interested in governance to listen to the recording. There is a lot of interesting information about the chancellor selection process, especially concerns about HB 1369, the was omitted in the 60 minutes CSU released after we filed suit. At about the 15-minute mark, board Chair Doug Jones describes unnamed legislators as “un-Christian” for their actions in pushing the bill. The Coloradoan will have a story up tomorrow morning on the recording. Included will be some comments from House Majority Leader Paul Weissman, who cops to, well, not being a Christian.
Ordering people to release things already released:
Thank goodness the lawyers were paid at least.
🙂
charging CSU unlawfully withheld records of its executive sessions when the media outlets asked for them, claiming they were public records under CORA. The judge’s ruling affirmed the recordings were public records and should not have been denied in the original request.
Frankly, this is the only way to force government bodies to comply with Colorado’s Sunshine Law. The hefty payment the Steamboat school district paid out after fighting a similar lawsuit tooth-and-nail helped CSU (and its counsel, the AG’s office) decide to settle. No one got rich off this lawsuit, but perhaps in the future CSU and other government bodies will take this into account when deciding whether to follow the law.
…the article says the lawsuit alleged and the judge found violations of the open meetings laws, not the open records laws. Maybe this is irrelevant, but it is a discrepancy. Anyhoo, my comment reflected my wonderment at the fact that the litigation proceeded after CSU voluntarily provided two-thirds of the requested materials. I guess that one-third was worth it?
In truth, I don’t care about the lawyers getting paid. But I don’t see why the AG’s office would care so much about it. The payments to the plaintiff’s attorney don’t come from the budget of the AG’s office, do they?
It’s both. Because the way the law is structured, it’s easier to sue quickly on an open records violation. In this case, the lawsuit alleged CSU unlawfully withheld records of the meetings, which should have been public because the executive sessions were unlawfully closed to the public. The judge had to first determine whether the executive sessions were held in violation of the COML in order to rule on the CORA lawsuit.
Of course the litigation proceeded after CSU “voluntarily” (under threat of lawsuit) turned over part of the records. The lawsuit was over the entirety of the records, not what CSU felt like releasing.
The AG’s office doesn’t like to lose (it makes their attorneys look like they don’t understand Colorado law) so they’ll be more likely to follow the law more strictly in the future. You’re right, the money doesn’t come out of the AG’s budget, but the legal credibility does.
I wonder, though, if the AG’s office shares your view of its large power over its clients’ decisions! 🙂
But the evidence shows these lawsuits have a direct and substantive effect. Subsequent to the CSU lawsuit’s filing, the CSU board radically changed the way it noticed executive sessions and, by all appearances, is conducting its business more in accordance with Open Meetings Law. The same is true of the Independent Ethics Commission, which is facing a similar lawsuit over its executive sessions brought by The Colorado Independent (one of the plaintiffs in the CSU lawsuit). Sometimes it takes a lawsuit to get the attention of lawyers and to get them to pay closer attention to the law.
Is it worth pointing out that media organizations bring these lawsuits to preserve and enforce the public’s right to know, not bloggers? None of these cases are slam dunks, and media organizations shell out big bucks without any guarantee they’ll be reimbursed for, basically, enforcing the law.
It’s a good question, though, whether an office of government lawyers owe their highest duty to the strictest interpretation of the law (which wouldn’t have allowed CSU to hold secret meetings the way they did) or to fulfilling their clients wishes (by advising how to skirt or bend the law). Similar questions abound over the Bush White House’s Office of Legal Counsel and the Justice Department. It’s a question with real implications beyond what might strike some as overly technical or arcane corners of the law.
…is your (seeming) premise that all of these acts were done by attorneys rather than by their clients. A sub-premise (is that a word?) seems to be that clients always take the advice of their attorneys, or that attorneys can force their clients to take their advice.
I mean, I watched L.A. Law and Ally McBeal, and it seemed like pig-headed and strong-willed clients were at least as problematic as stupid lawyers.
are paid and have a duty to advise state bodies on compliance with Colorado law. They signed off on the improper meeting notices and were also involved in rejecting the open records request. I have no doubt the AG’s attorneys were trying to keep their clients (in this case, the CSU board) happy, but the attorneys were also there every step of the way, at a minimum providing legal cover — which, it turns out, was mistaken. So either the AG’s office gave bad advice or shirked its duty by standing aside to let the board do what it wanted contrary to the law. And since the payout to the media org’s attorneys comes out of the CSU budget, it’s the possibly pig-headed clients who are most damaged anyway.
…I’m happy!
This lawsuit was brought under the Colorado Open Meetings Law. CSU actually tried to fog the issue in pleadings by bringing in CORA passages that weren’t relevant. The Legislature added, in about 2001, a provision to COML that allowed a judge to conduct a private review of executive session recordings if plaintiffs could produce evidence of a violation. If the judge finds in favor of the plaintiff, he can order all or parts of the tape to be made public. That’s what happened here. Judge Schapanksi found a violation, ordered about 90 minutes released, CSU filed for reconsideration, then finally reached a settlement agreement to release the portions of the tape identified by the judge.
I misunderstood because of the swiftness with setting hearings. If the lawsuit was filed the day after the meeting, there wouldn’t have been time to make a CORA request and have it denied. Apologies.
One other point: The AG’s office wasn’t just defending the CSU board in this lawsuit. The AG’s office also advised the CSU board that it could hold these particular secret meetings in contravention of Colorado’s Open Meetings Law. So, in a sense, the AG’s office was responsible for taking CSU down this road in the first place and so had a real interest in the lawsuit’s outcome.
If the AG’s office had such an interest, why wouldn’t they appeal the case as far as the eye can see? Releasing the allegedly secret records and settling for $$$ is the same as admitting that your legal advice was faulty wrong, no? Why not defend yourself to the end, especially when the dollar damages don’t come out of your pocket if you happen to lose?
but the judge’s initial rulings basically blew the CSU defense out of the water. It sounds like CSU and the AG’s office decided to cut their losses. Neither CSU nor the AG’s office have bottomless budgets to litigate these days, and dragging out the lawsuit would have incurred additional and substantial costs to both if the end result was clear.
Worth noting: Because this lawsuit was brought under CORA alleging COML violations, it moved much faster than a strictly Open Meetings lawsuit would have. The Steamboat lawsuit, which took two years and piled up hundreds of thousands in legal fees, was a COML lawsuit. This lawsuit was going to be decided faster than that in any case.
A settlement also allowed both sides to negotiate terms. In this case, CSU didn’t admit any wrongdoing, which gave the AG’s office some cover for its professional pride. If the litigation had continued, they might not have had this luxury.
To the best of my knowledge, the AG’s office never gave prospective advice to the BOG on how to conduct the May 5 meeting. CSU’s general counsel was present at the meeting. CSU spokeswoman Michele McKinney said that, after we raised questions about the meeting, the AG’s office had given retrospective blessing to their actions. The AG’s office did represent CSU in the lawsuit because it’s a state agency.
I bet. Just like the AG gave Gov. Ritter his blessing to hire Hogan and Hartson on a no-bid contract. It isn’t the AG’s job to give retrospective blessings or advice. It is the AG’s job to give advice beforehand and to defend afterward.
Of course, CSU and other state higher ed facilities have their own in-house general counsel, and usually rely on them to give advice. The AG doesn’t usually get a call until the university gets sued.
We all owe you a big thank you!!!