Skip to content

Judicial Watch • 2011 jw-v-co-oarc-openingbrief-02282011

2011 jw-v-co-oarc-openingbrief-02282011

2011 jw-v-co-oarc-openingbrief-02282011

Page 1: 2011 jw-v-co-oarc-openingbrief-02282011

Category:Legal Document

Number of Pages:15

Date Created:February 28, 2011

Date Uploaded to the Library:July 30, 2013

Tags:charges, created, specifically, telephone, independent, official, chief, personal, number, exhibit, access, investigation, requested, public, Supreme, letter, Attorney, Counsel, justice, September, watch, White House, records, michael, thomas, State, judicial, Supreme Court, Washington, court, EPA, IRS, ICE, CIA


File Scanned for Malware

Donate now to keep these documents public!

  • demand_answers

See Generated Text   ˅

Autogenerated text from PDF

Court Address: 	1437 Bannock Street Denver, 80202 
Plaintiff: JOHN GLEASON, his official capacity Supreme Court Attorney Regulation Counsel 
vs. 
Defendant: JUDICIAL WATCH, INC. 

Consolidated with: Plaintiff: JUDICIAL WATCH, INC., District Columbia not-for-profit corporation 
vs. 
Defendants: OFFICE ATTORNEY REGULATION COUNSEL, Colorado state agency, and JOHN GLEASON, his capacity the State Colorado Regulation Counsel 
Attorneys for Defendant: 
Name:  James Rouse 
Address: Rouse Law Office, P.C.  

8400 Prentice Ave., Suite 1040 
Greenwood Village, 80111-2922 Phone Number: (303) 694-0694 Fax Number:  (303) 793-3678 E-mail:  jrouse@rouseandassoc.com Atty. Reg. No.: 10675 
Name:  Michael Bekesha 
Address: 	Judicial Watch, Inc.                 425 Third St., S.W., Suite 800                 Washington, 20024 
Phone Number: (202) 646-5172 Fax Number:  (202) 646-5199 E-mail:  mbekesha@judicialwatch.org 
D.C. Bar. No.: 	995749; Pro Hac Vice Application Pending 

 COURT USE ONLY 
 _______________________ 

Case Number: 2010 8996 
Consolidated with: 2010-CV-9052 
Div.: Ctrm.: 
JUDICIAL WATCHS OPENING BRIEF September 2010, Judicial Watch, Inc. (Judicial Watch) sent Colorado Open Records Act (CORA) request the Office the Attorney Regulation Counsel (the OARC) and the Attorney Regulation Counsel (the ARC) seeking access records created, maintained, kept the OARC and the ARC.  The OARC and the ARC refused provide access such records. Subsequently, November 2010, the ARC filed Application this Court under  24-72-204(6)(A), C.R.S. This section CORA authorizes official custodian public records apply district court for order permitting him restrict disclosure public records. filing his Application with this Court seeking withhold public records, the ARC has effectively conceded that the custodian such public records.  Hence, for this reason alone, the OARC and the ARC can longer plausibly argue that the records issue are not public records. any event, the Court has asked the parties brief whether the requested records are public records. public records, the requested records must created, maintained, kept the OARC the ARC, and the records must for use the performance public functions involve the receipt and expenditure public funds.  Under Colorado law, the initial burden proof the requesting party demonstrate that the requested records are likely public records. Once the requesting party demonstrates that the records are likely public records, the burden proof shifts the custodian the records.  The custodian the records then must demonstrate that the records are not public records. set forth below, Judicial Watch satisfies the initial burden and makes the threshold showing that the requested records are likely public records.  The records requested Judicial Watch September 2010 were created, maintained, and/or kept the OARC.  Similarly, the requested records his official capacity ARC.  Moreover, the requested records were for use the performance public functions and/or involved the receipt and expenditure public funds. 
FACTUAL BACKGROUND The Arizona Supreme Court Appointed the OARC. March 23, 2010, Chief Justice Rebecca White Berch the Arizona Supreme Court issued administrative order appointing The Colorado Supreme Court, Office the Regulation Counsel under the direction Regulation Counsel, John Gleason Independent Bar Counsel the State Bar Arizona for purposes investigating allegations professional misconduct Andrew Thomas, the former County Attorney Maricopa County, Arizona, and other lawyers formerly employed the Maricopa County Attorneys Office.  Judicial Watchs Complaint and Application for Order Show Cause (Case No. 2010-cv-9052) (JW Complaint)  Office Attorney Regulation Counsel and Attorney Regulation Counsel Answer (Case No. 2010-cv-9052) (Answer)  Attorney Regulation Counsels Application Pursuant Section 24-72-204(6)(A), C.R.S. (Case No. 2010-cv-8996) (ARC Application)  see also, Supreme Court the State Arizona Administrative Order No. 2010-41  (Exhibit ARC Application). The Arizona Supreme Court also issued press release stating that Arizona Supreme Court Chief Justice Rebecca White Berch has appointed John Gleason and the Colorado Office Attorney Regulation serve Independent Bar Counsel.  Press Release, New Independent Counsel Appointed Review Allegations Misconduct Maricopa County Attorney Andrew Thomas, Arizona Supreme Court (March 23, 2010) (attached Exhibit Colorado Supreme Courts willingness assist us.  Id. 
According the OARC and the ARC, March 25, 2010, the Chief Justice the Colorado Supreme Court issued Order authorizing the ARC act conformance with the Arizona Supreme Courts Administrative Order.1  ARC Application   The ARC and least one other attorney the OARC spent considerable time Arizona conducting bar investigation. Answer  10. This investigation, according media reports, lasted over eight months and consisted the ARC and least one other attorney the OARC interview[ing] about 100 people, review[ing] thousands documents and review[ing] pleadings and grand-jury transcripts. Yvonne Wingett, Craig Harris and Michael Kiefer, Investigator Recommend Disbarment Thomas Ethics Case, THE ARIZONA REPUBLIC, Dec. 2010.2 the end this investigation, the ARC filed 82-page, formal complaint against the targets the investigation. See generally, Arizona Independent Bar Counsel Complaint (Attached Exhibit 2).  The formal complaint was signed: 
John Gleason Independent Bar Counsel Chief Justice Order No. 2010-14 COLORADO SUPREME COURT OFFICE ATTORNEY REGULATION COUNSEL 1560 Broadway, Suite 1800 Denver, Colorado 80202 303-866-6400 
Id. 82. Curiously, the Colorado Supreme Courts Office the Clerk well the Office the State Court Administrator have represented Judicial Watch that such order exists, and the OARC and the ARC have refused provide copy the alleged March 25, 2010 order Judicial Watch. This article available 
http://www.azcentral.com/news/election/azelections/articles/2010/12/06/20101206andrewthomas-discipline-arizona-supreme-court.html. 
capacity, when conducted his bar investigation and filed the bar complaint.  Therefore, the 
records concerning the facts and circumstances surrounding the appointment the OARC 
investigate are records created, maintained, and/or kept the ARC his official capacity. 

II. Judicial Watch Requested Public Records from the OARC and the ARC. September 2010, Judicial Watch sent CORA request the OARC and the ARC 
seeking access records created, maintained, kept the OARC and the ARC concerning the 
facts and circumstances surrounding the appointment the ORAC conduct the above-
described investigation. See CORA Request (Exhibit ARC Application).  Specifically, 
Judicial Watch requested copies of: 
(1) 
Any and all records communications between OARC/ARC, the Arizona Supreme Court, and/or the Arizona State Bar concerning relating the March 23, 2010 appointment OARC/ARC Arizona Supreme Court Chief Justice Rebecca White Berch serve Independent Bar Counsel for purposes investigating and/or prosecuting allegations misconduct against former Maricopa County Attorney Andrew Thomas and/or lawyers formerly his employ (hereinafter the Thomas Charges);     

(2) 
Any and all records communications between OARC/ARC, the Colorado Supreme Court, and/or the Attorney Regulation Committee the Supreme Court Colorado concerning relating the March 23, 2010 appointment OARC/ARC Arizona Supreme Court Chief Justice Rebecca White Berch serve Independent Bar Counsel for the Thomas Charges;  

(3) 
Any and all records concerning relating the authority OARC/ARC, under Colorado law, accept the appointment Arizona Supreme Court Chief Justice Rebecca White Berch serve Independent Bar Counsel for the Thomas Charges;  

(4) 
Any and all records concerning relating the authority OARC/ARC, under Colorado law, investigate prosecute allegations attorney misconduct for entity other than the Supreme Court Colorado;  

(5) 
Any and all records concerning relating the authority OARC/ARC, under Colorado law, investigate prosecute allegations 

(6) 
Any and all bills, invoices, statements for services rendered expenses incurred OARC/ARC serving Independent Bar Counsel for the Thomas Charges; and 

(7) 
Any and all records payments received OARC/ARC, the Colorado Supreme Court, the State Colorado for services rendered expenses incurred OARC/ARC serving Independent Bar Counsel for the Thomas Charges. 

Id. 
The OARC and the ARC denied access all records responsive Item Nos. 1-2 and See September 20, 2010 Letter (Exhibit ARC Application).  Although Judicial Watch plainly had not sought access any work product, working files, deliberations, internal communications, the OARC and the ARC nonetheless asserted that records responsive Item Nos. 1-2 and 6-7 were protected from disclosure because they allegedly constitute work product, working files and records attorneys employed the Arizona judiciary general and for purposes prosecuting disciplinary cases general.  Id. With respect Item Nos. 3-5, the OARC and the ARC simply failed respond.  Id. alleviate any confusion about its request, Judicial Watch sent follow-up letter the OARC and the ARC September 23, 2010.    See September 23, 2010 Letter (Exhibit ARC Application).  With respect Item Nos. and Judicial Watch specifically stated that was not seeking access any work product, working files, deliberations, internal communications. Id. Judicial Watch explained that Item Nos. and requested external communications concerning the facts and circumstances surrounding this appointment the OARC the Arizona Supreme Court and that such communications are obviously materially different from the actual work undertaken the OARC the ARC.  Id. With respect Item Bar Arizona for services rendered expenses incurred the OARC the ARC, and records payments received from the State Bar Arizona for such services expenses, are obviously materially different from work product, working files, deliberations, internal communications.  Id. Judicial Watch also stated that the response the OARC and the ARC was non-responsive with respect Item Nos. 3-5.  Id. 
 Despite these clarifications, the OARC and the ARC continued refuse produce the requested records. See September 28, 2010 Letter (Exhibit ARC Application).  Judicial Watch therefore informed the OARC and the ARC that Judicial Watch intended apply the Court for order compelling production the requested records created, maintained, and/or kept the OARC and the ARC the performance their public functions.  See November 15, 2010 Letter (Exhibit ARC Application).  

III.	 Litigation Commenced Concerning Judicial Watchs CORA Request. 	The ARC, the official custodian the requested records,  applied the Court for determination whether disclosure the public records prohibited. 
Prior Judicial Watch filing suit, November 17, 2010, the ARC, the official 
custodian the requested public records, preemptively sued Judicial Watch.  See ARC 
Application. the ARC avers his Application, A records custodian may apply this court 
for determination whether disclosure required prohibited.  ARC Application  10.  
Specifically, the ARC applied the Court under 24-72-204(6)(a), C.R.S., which states: 
[I]f the official custodian unable, good faith, after exercising reasonable diligence and after reasonable inquiry, determine disclosure the public record prohibited pursuant this part the official custodian may apply the district court the district which such record located for order permitting him her restrict such disclosure for the court determine disclosure prohibited. 
Id. (citing 24-72-204(6)(a), C.R.S.) (emphasis added). the ARC also avers, Applicant unable determine whether disclosure prohibited.  Application 10. other words, the applicant John Gleason, his official capacity Supreme Court Attorney Regulation Counsel[,] and unable determine whether may legally deny access the public records requested Judicial Watch.  ARC Application (emphasis added). contrast, the ARC was possession records his personal capacity, under Colorado law, could not have applied the Court under CORA. 
Subsequently, Judicial Watch filed both Answer the Application and counterclaim. Judicial Watchs Answer and Counter Claim (Case No. 2010-cv-8996).  The ARC responded the counterclaim.  Attorney Regulation Counsels Reply Counterclaim (Case No. 2010-cv-8996). Judicial Watch filed complaint with the Court under CORA. 
Shortly after the action commenced the ARC, Judicial Watch filed its own Complaint November 19, 2011.  See Complaint.  The OARC and the ARC answered the Complaint December 2010.  See Answer. The case brought Judicial Watch was subsequently consolidated with the case brought the ARC January 2010.  Order Consolidate (Case No. 2010-cv-8996). Thereafter, February 2011, the Court directed the parties brief whether the requested records are public records under CORA. 
ARGUMENT The Burden Proof Shifts under CORA. 
CORA defines public records all writings made, maintained, kept for use the exercise functions required authorized law administrative rule involving the receipt expenditure public funds.  24-72-202, C.R.S. there dispute, there here, initial burden the requesting party demonstrate that the records issue are likely public records.  Denver Publishing Co. Board Commissioners the County Arapahoe, 121 P.3d 190, 199 (Colo. 2005) (citing Wick Communications Co. Montrose Daily Press, P.3d 360, 362 (Colo. 2003)). The Colorado Supreme Court has held that this burden requires only that the requesting party demonstrate that the document likely public record for purposes establishing that the Act applies, not that definitively public record. Wick, P.3d 364. Moreover, the Court held that this requirement [is not] overly burdensome.  Id. 
The demonstration required the requester depends whether the custodian the records public official government agency. the custodian public official, the requester satisfies the burden can show that the records are made, maintained, kept public capacity. Denver Publishing, 121 P.3d 199 (citing Wick, P.3d 366); see also Denver Post Corp. Ritter, 230 P.3d 1238, 1241 (Colo. App. 2009) (The requesting party must show that the record was likely made, maintained, kept the custodian his her official capacity.). If, however, government agency the custodian the records, the initial burden unquestionably met and further inquiry necessary.  Id.; see also, Ritter, 230 P.3d 1241. 
Regardless whether the custodian public official government agency, once requester satisfies the initial burden and demonstrates that the requested records are likely public records, the burden then shifts the custodian show that the records are not public records. Denver Publishing, 121 P.3d 199; Wick, P.3d 362-363; Ritter, 230 P.3d 1241. 
The burden ultimately falls the custodian because it holds the necessary information.  Ritter, 230 P.3d 1241 (citing Wick, P.3d 363-364). The custodian must therefore look the content the records resolve whether they relate the performance P.3d 199. More succinctly, the requested record must for use the performance public functions involve the receipt and expenditure public funds.  Id. 
II. 	The Requested Records that were Created, Maintained, and/or Kept the  OARC and the ARC are Public Records. 	The requested records are likely public records. 
Despite their assertions the contrary (Answer  3), obvious that both the OARC and the ARC are custodians the requested records.  Moreover, the OARC and the ARC are custodians their official capacities. discussed above, the Arizona Supreme Court issued administrative order appointing the OARC Independent Bar Counsel. Answer  The administrative order could not clearer. The Arizona Supreme Court did not appoint John Gleason, private attorney, Independent Bar Counsel. specifically appointed the OARC. The office, not the individual, was appointed the Arizona Supreme Court; therefore, the OARC, not the individual, the custodian the records.  Because the OARC government agency, the requested records are likely public records. Denver Publishing, 121 P.3d 199; Ritter, 230 P.3d 1241. 
Even the Court were find that the OARC not the custodian the public records, with respect the ARC, obvious that the custodian the requested records his official capacity. First, the ARC has conceded that the official custodian requested public records submitting his Application the Court.  ARC Application  (A records custodian may apply this court for determination whether disclosure required prohibited.). Colorado law clear that the ARC can only apply the Court for remedy under CORA the official custodian public records.   24-72-204(6)(a), C.R.S.  The ARC could legally deny access the requested public records.  See ARC Application. the ARC were possession records his personal capacity, under Colorado law, would not have been authorized apply the Court under CORA. 
Second, according the ARC, the Colorado Supreme Court issued order authorizing the ARC act conformance with the Arizona Supreme Court. obvious from the text the Arizona Supreme Courts administrative order, the Arizona Supreme Court appointed the OARC Independent Bar Counsel.  The Arizona Supreme Court did not appoint John Gleason, private attorney, Independent Bar Counsel.  Once again, was not John Gleason, private attorney, who was appointed. See Administrative Order; Press Release. 
Third, the exhaustive investigation undertaken the ARC and another attorney the OARC demonstrates that this was official, not personal, investigation. The investigation lasted for more than eight months.  During that time, the ARC and least one other attorney the OARC interviewed approximately 100 people and reviewed thousands documents.  See Yvonne Wingett, Craig Harris and Michael Kiefer, Investigator Recommend Disbarment Thomas Ethics Case, THE ARIZONA REPUBLIC, Dec. 2010. other words, this was small investigation. Notably, neither the OARC nor the ARC has asserted that this extensive investigation occurred during personal time personal capacity.  For example, there evidence that the ARC and the other attorney the OARC took leave conduct interviews Arizona research and prepare the 82-page bar complaint.  Nor there any evidence that the ARC and the other attorney the OARC exclusively used their personal resources cover the obviously substantial expense their extensive investigation.  Rather, appears likely that the 
Fourth, Colorado law mandates that the ARC must acting his official capacity.   Rule 251.3 Colorado Rules Civil Procedure, clearly states: 
The Regulation Counsel, while serving that capacity, shall not hold any other 
public office engage the private practice law. 
C.R.C.P. 251.3(b). other words, the ARC cannot acting anything but his official capacity, otherwise would violating Colorado law. 
Fifth, even the ARC claims was acting private attorney, his actions are the contrary. Specifically, the ARC signed the Arizona Independent Bar Counsel Complaint John Gleason, Colorado Supreme Court, Office Attorney Regulation Counsel.  See Arizona Independent Bar Counsel Complaint 83. 
Sixth, pursuant Colorado law, the ARC must maintain and supervise permanent office, the OARC, which serves central office for the filing requests for investigations and the coordination such investigations, well for the administration all disciplinary and disability enforcement proceedings against Colorado attorneys, among other purposes.  See 
C.R.C.P. 251.3(c)(1).  The OARC solely and exclusively exists because the ARC.  The ARC therefore the custodian the OARCs records. 
For all these reasons, the ARC the official custodian the requested records his official, not personal, capacity, and those records are public records.  Moreover, the case law consistent with this conclusion. Wick, the requested records were pages from personal diary County Manager. Wick, P.3d 361. Denver Publishing, the requested records were personal email messages between County Clerk/Recorder and Assistant Chief Deputy Clerk, which happened maintained and kept countys email system.  Denver Publishing, 121 the governor. Ritter, 230 P.3d 1239. each court properly concluded, those records were created, maintained, kept public officials, albeit their obviously personal capacities. contrast these cases, the facts this case not indicate any way that the ARC has created, maintained, and/or kept the requested records his personal capacity.  There nothing personal about the records requested Judicial Watch.  Indeed, bar investigations and the disciplining lawyers  officers the court  distinctively governmental function. 
The ARC created, maintained, and/or kept the requested records his official capacity the ARC. time was acting private attorney during his Arizona investigation.  Therefore, all records concerning the facts and circumstances surrounding the appointment the OARC the Arizona Supreme Court are likely public records. Judicial Watch therefore has satisfied the initial burden.  Denver Publishing, 121 P.3d 199; Wick, P.3d 366; Ritter, 230 P.3d 1241. 	The OARC and the ARC cannot show that the requested records are not public records. 
Because Judicial Watch has shown that the requested records are likely public records, the burden shifts the custodian the records  the OARC and/or the ARC  show that the records are not public records.  Denver Publishing, 121 P.3d 199; Wick, P.3d 362-363; Ritter, 230 P.3d 1241. For the reasons stated above, the requested records are, fact, public records under CORA. 
The requested records were created, maintained, and/or kept the OARC and the ARC for use the performance public functions involved the receipt and expenditure public funds. date, neither the OARC nor the ARC has shown that the was acting personal capacity when conducted the investigation.  Judicial Watch has not and does not seek access solely requested records the possession the OARC and the ARC concerning the facts and 
circumstances surrounding the appointment the OARC the Arizona Supreme Court.  The 
requested records therefore are public records under CORA. 

CONCLUSION 
For the foregoing reasons, the Court should rule favor Judicial Watch and find that 
the requested records are public records under CORA. 
Dated: February 28, 2011    Respectfully submitted, 
(original signature file) James Rouse (Atty. Reg.  10675) ROUSE LAW OFFICE, P.C. 8400 Prentice Ave., Suite 1040 Greenwood Village, 80111-2922 Telephone: 303-694-0694 Fax: 303-793-3678 E-mail:  jrouse@rouseandassoc.com 
(original signature file) Michael Bekesha (D.C. Bar. No. 995749) (Pro Hac Vice Application Pending) JUDICIAL WATCH, INC. 425 Third St., S.W., Suite 800 Washington, 20024 Telephone: (202) 646-5172 Fax: (202) 646-5199 E-mail: mbekesha@judicialwatch.org Counsel: 
Paul Orfanedes (D.C. Bar No. 429716) JUDICIAL WATCH, INC.       425 Third St., S.W., Suite 800       Washington, 20024       Telephone: (202) 646-5172       Fax: (202) 646-5199       E-mail: porfanedes@judicialwatch.org hereby certify that this 28th day February, 2011 true and correct copy the 
above Judicial Watchs Opening Brief was e-filed using LexisNexis File and Serve which will 
serve the persons below e-mail addressed to: 
JOHN SUTHERS, Attorney General MAURICE KNAIZER, Deputy Attorney General 1525 Sherman Street, 7th Floor Denver, 80203 E-Mail: maurie.knaizer@state.co.us 
(original signature file) James Rouse