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Judicial Watch • 2011 jw-v-cora-supplementalbrief-04082011

2011 jw-v-cora-supplementalbrief-04082011

2011 jw-v-cora-supplementalbrief-04082011

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DISTRICT COURT, CITY AND COUNTY DENVER, COLORADO 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; Admitted Pro Hac Vice   COURT USE ONLY  _______________________ Case Number: 2010 8996 Consolidated with: 2010-CV-9052 Div.: Ctrm.:  414  
JUDICIAL WATCH, INC.S SUPPLEMENTAL BRIEF  

INTRODUCTION the conclusion the March 28, 2011 hearing, the Court requested that the parties submit supplemental briefs addressing whether the Colorado Open Records Act (CORA) applies the administrative records the Attorney Regulation Counsel (ARC), entity within the Judicial Branch that clearly not court.1 The Court asked the parties focus Chief Justice Directive 05-01 (CJD 05-01) and whether open records laws other states extend the records administrative and regulatory entities within their judicial branches. demonstrated below, CORA applies the administrative records the ARC. 

ARGUMENT 
CORA defines public record all writings made, maintained, kept the state, any agency, institution .  24-72-202, C.R.S. CORA also defines official custodian any officer employee the state, any agency, institution .  Id. other words, any officer employee the state subject CORA.  The issue presently before the Court, therefore, whether the ARC, which not court record, but administrative and regulatory entity within the Judicial Branch, exempt from the plain meaning CORA. 	BIS and CJD 05-01 Confirm that CORA Applies the Administrative Records the Judicial Branch. Judicial Watch demonstrated its answer brief and the March 28, 2011 hearing, Office the State Court Administrator Background Information Services, 994 P.2d 420 (Colo. 1999) (BIS) addresses the applicability CORA court records, more specifically, computer-generated bulk data containing very particularized information about individuals who 
Judicial Watch continues maintain that the requested records are records the Office the Attorney Regulation Counsel and the ARC.  For simplicity and ease reading, Judicial Watch solely refers the ARC; Judicial Watch does not concede that the ARC the only custodian the requested records. 
are parties criminal civil cases the courts record the State Colorado.2 BIS, 994 P.2d 422 (Colo. 1999) (emphasis added). The Court BIS did not purport address the applicability CORA the records the offices and entities within the Judicial Branch that are not courts record, such the Office the State Court Administrator, the various divisions within that office, the ARC. addressing the applicability CORA sensitive, computerized bulk data parties criminal and civil court proceedings, the Court BIS recognized that CORA does not exist vacuum with respect case-specific court records.  Specifically, noted that the General Assembly had enacted the Criminal Justice Records Act and the Integrated Criminal Justice Information System Act governing the creation, maintenance, and dissemination criminal case records. BIS, 994 P.2d 426-27. also identified specific statutes limiting disclosure court records child dependency and neglect proceedings, delinquency proceedings, and mental health case files. BIS, 994 P.2d 427-28. also noted two general pronouncements the General Assembly relating court records. BIS, 994 P.2d 428. Thus, the question before the Court was how discern the General Assemblys intent with respect the requested case-specific, personalized bulk data light CORA and the other legislative enactments and general pronouncements regarding court records.  
The Court conclude[d] that the General Assembly has not evidenced its intent that this  data should unqualifiedly available the public bulk form, and absent such intent, the 
The Court expressly noted that the records requested BIS included divorce filings, general civil case filings, probate, mental health, juvenile, dependency and neglect, and water case filings and that such filings can contain very private emotional, financial, and psychological documents, well identifying information such drivers license numbers, social security numbers, and addresses many the people who are party witness civil criminal case. BIS, 994 P.2d 427, 429. 
administrative policies the supreme court control its release.  BIS, 994 P.2d 422 (emphasis 
added). The Court continued: Specifically, conclude that the General Assembly has enacted various specific statutes that control the release court record information and has afforded the courts themselves control over release the remaining information pursuant court order rule. absent statutory mandate dealing with particular court records, such records official action criminal cases, the courts themselves retain authority over the dissemination court records.  BIS, 994 P.2d 422, 432. 
Quite simply, the Courts ruling BIS does not address whether non-court records, such records created offices and entities within the Judicial Branch that are not courts record, are subject CORA, much less hold that the records such offices and entities are not subject CORA. Rather, the logical conclusion drawn from the Courts ruling BIS concerning court records that the General Assembly intended CORA apply non-court records such the records the ARC requested Judicial Watch.  The ARC certainly has not identified any legislative enactment the General Assembly that would contradict rebut the clear intent expressed CORA that all writings made, maintained, kept the state, any agency, institution  are public records subject disclosure under CORA.   24-72-202, C.R.S. This Court should not the first find that the non-court records the Judicial Branch fall outside the reach CORA. 
Chief Justice Directive 05-01 (CJD 05-01), issued April 27, 2005 Chief Justice Mary Mullarkey and entitled Directive Concerning Access Court Records, reinforces this conclusion recognizing the distinction between case specific court records, which are subject the directive, and non-case specific, administrative records, which are not.  Succinctly 
put, the purpose the directive to provide comprehensive framework for public access 
court records. CJD 05-01 states, [T]he public may inspect and obtain copy 
information court record.  Id. The directive expressly states that applies to all court 
records.  Id. defines court records follows: 
For purposes this policy 
(a)
 Court record includes: 

(1) 	
any document, information, other item that collected, received, maintained court clerk court connection with    judicial proceeding; 

(2) 	
any index, calendar, docket, register    actions, official record the proceedings,  order, decree, judgment, minute order,     that related judicial proceeding; and

 (3) 	
the electronic record (ICON/Eclipse)  official court record, including the probation    ICON/Eclipse files. 

(b)
 Court record does not include: 

(1) 	
other records maintained the court  clerk court pertaining the administration the court clerk  courts office not associated with any particular case (i.e., personnel information,     travel vouchers, e-mail, etc.); 

(2) 	
non ICON/Eclipse probation records; 

(3) 	
administrative and management reports; 

(4) 	
judges notes and judicial work product related the deliberative process; and 

(5) 	
information gathered, maintained stored governmental agency other entity  which the court has access but which not  

part the court record defined section  3.10(a). 

(6) 	
other records maintained the Judicial  Branch not expressly defined court    records 3.10(a). 

Id. 
Like BIS, the directive defines court records records that contain very particularized, case-specific information, then establishes framework for how such records are made available the public. even describes which records may lawfully withheld.  Id. 9-10 (Court records the following case types are not accessible the public .).  Like the Courts holding BIS, the directive does not address non-court records.  Nor does purport authorize limit the disclosure non-court records.  The directive only establishes framework for the disclosure court records. not purporting control the disclosure non-court records, including other records maintained the Judicial Branch not expressly defined court records (Id. 3), the directive recognizes that the intent the General Assembly, expressed CORA, governs the disclosure these non-court records.  Indeed, since the Court BIS did not exempt non-court records from the disclosure requirements CORA, there was need for Chief Justice Mullarkey provide guidance the administrative and regulatory entities within the Judicial Branch the disclosure such records.  CORA governs the disclosure these non-court records, which includes the records requested Judicial Watch.   

II. 	Open Records Laws Other States Provide Access Administrative Records  the Judiciary. 
The Court also requested that the parties look other states and analyze whether their open records laws extend administrative records their judiciaries. preliminary matter, review the open records law other states reveals that two states have identical open 
records laws. However, the same review also reveals that state open records laws routinely apply the judiciary, and they even more frequently apply the administrative records the judiciary. Utah, the Government Records Access and Management Act specifically defines government entity courts, the Judicial Council, the Office the Court Administrator, and similar administrative units the judicial branch.  Utah Code Ann.  63G-2-103(11)(a)(iii). Wyoming, official custodian includes any officer employee the state[,] and the law does not except the judiciary from that definition.  Wyo. Stat.  16-4-201.  Other states that have their entire judiciary covered their open records laws include:  Idaho (Idaho Code  9337(13)); Indiana (Ind. Code  5-14-3-2); Nevada (N.R.S. 239.005); and North Carolina (N.C. Gen. Stat.  7A-109(A)). 
Moreover, many states distinguish between courts record, judicial officers, and administrative arms their judicial branches.  For example, Kansas specifically exempts any municipal judge, judge the district court, judge the court appeals justice the supreme court from complying with its open records law, but does not exempt the administrative arms those courts.  Kan. Stat.  45-217(f)(2)(B).  Oklahoma similarly created exception for judges, justices, and the Council Judicial Complaints from providing access records except with respect records the receipt and expenditure any public funds reflecting all financial and business transactions. Okl. St.  24A.3 and  24A.4. Additional states that make this distinction include:  Connecticut (Clerk the Superior Court Freedom Information Commission, 895 A.2d 743, 757 (Conn. 2006) (For the purposes its open records act, the judicial branchs administrative functions consist activities relating its budget, 
personnel, facilities and physical operations and that records unrelated those activities are 
exempt.)); Hawaii (Haw. Rev. Stat.  92F-12(a)(2)); Mississippi (Miss. Code  9-1-38); Missouri (Mo. Rev. Stat.  610.010(4)); and Rhode Island (R.I. Gen. Laws  38-2-2(4)(i)(T) (Judicial bodies are included only respect their administrative function)). 
Finally, the open records laws several states not apply the judiciary.  These rare instances are result the plain language the statute exempting the judiciary.  Moreover, each those states, the courts have recognized common law scheme presumption disclosure with respect court records.  See e.g., Nast Michaels, 730 P.2d 54, (Wash. 1986) (The Washington open records law does not apply court case files because the common law provides access court case files.); Barron Florida Freedom Newspapers, Inc., 531 So.2d 113, 116 (Fla. 1988) (finding that there the well-established common law right access court proceedings and records Florida); Arkansas Best Corp. General Elec. Capital Corp., 878 S.W.2d 708, 713 (Ark. 1994) (finding that there nothing new about the strong right public access court records).  Such state laws are not comparable Colorado because CORA does not specifically exempt the judiciary from its provisions. 
Besides the plain reading state statutes, case law various states also demonstrates that the administrative records their judiciaries are routinely distinguished from court filings.  For example, New Yorks Freedom Information Law explicitly excludes the judiciary from its definition state agency subject the law.  Babigan Evans, 427 N.Y.S.2d 688, 689 (N.Y. Sup. Ct. 1980). The judiciary means the courts the state.  Id. Therefore, has been repeatedly held: view the legislative purpose promote open government, the court inclined construe narrowly any section that would tend exclude offices government from the law.  [The law] specifically refers courts when defines judiciary.  The legislature did not include the administrative arm the court.  The 
Office Court Administration does not exercise judicial 
function, conduct civil criminal trials, determine pretrial 
motions. [It] not court. Id.; see also, Quirk Evans, 455 N.Y.S2d 918, 921 (N.Y. Sup. Ct. 1982) (The Office Court Administration, clear, agency, not court, and therefore subject the Freedom Information Law.).  Moreover, under New York law, the State Board Law Examiners also subject its open records law. Pasik State Board Law Examiners, the State Board Law Examiners asserted that it was the intent the Legislature not only exclude the judiciary from [the open records law] but also exclude agencies performing functions the judiciary. 451 N.Y.S.2d 570, 571 (N.Y. Sup. Ct. 1982).  The court however concluded that such argument was without merit because the State Board Law Examiners does not exercise judicial functions. not court; solely arm it.  Id. 575. 
Similarly, records North Dakotas State Board Law Examiners are subject disclosure under the states open records law unless specifically exempted law.  See generally, Lamb State Board Law Examiners, 777 N.W.2d 343 (N.D. 2010). Lamb, the North Dakota Supreme Court held that the State Board Law Examiners could withhold the requested records issue because specific court rule prevented such disclosure.  Id. 349. Moreover, the court explained, Other jurisdictions have also concluded that the courts can exempt processes regarding admission the bar from public disclosure.3 Id. other words, all records arms the courts are subject the open records laws their respective states.  Specific records therefore are only exempt from disclosure statute rule specifically authorizes the arm the court withhold such records. 
Such states include Alaska, Arkansas, Connecticut, Florida, and Louisiana.  Id. 
Finally, courts other states have also addressed concerns related the separation 
powers doctrine. the end, they have concluded that there violation the separation powers doctrine with respect open records laws. Louisiana, for example, courts addressed whether records related payments and disbursements funds from the Judicial Expense Fund were subject the states open records law. Henderson Bigelow, 982 So.2d 941, 942 (La. Ct. App. 2008). The judge who administered and controlled the fund argued that the requested records should exempt from production because the application the Public Records Act the judiciary would violate both the separation powers set forth our constitution and the inherent authority the courts. Id. 946. The court disagreed. Id. 
Under Louisiana law, public records are defined records prepared, possessed, retained for use conduct, transaction, performance any business, transaction, work, duty, function ... performed under the authority the constitution laws this state.  Id. Because this all-encompassing statute  different from that Colorado  the court explained: 
The use public funds collected and deposited into the legislatively created judicial expense funds for the courts this state concern matters public business, and concern the receipt disbursement monies received paid under the laws this state. such, unless specifically exempted excepted from the disclosure requirements the Public Records Act the Louisiana Constitution, all records relative the expenditures and disbursements public monies from the various courts judicial expense funds fall within the broad definition public records and are subject disclosure. 
Id. 947. reach its conclusion, the court examined precedent set forth the Louisiana Supreme Court. previous cases, the Louisiana Supreme Court had addressed whether bar examinations, model answers, and grading guidelines were exempt from disclosure under its open records law. Id. 948. The state Supreme Court, those instances, focused the 
plenary power and inherent authority granted the constitution over matters regulating all 
aspects the practice the law.  Id. 949. The court ultimately concluded that the requested records were confidential and directly related the regulation the practice law, i.e., how the Committee determined which individuals were qualified admitted the states bar practice law. Id. Yet, the court Henderson stated, 
Significantly, nowhere [those cases does] the Supreme Court declare that the Public Records Act does not apply the judiciary.  The Court could have made this ruling, but did not. the contrary, reaching its determination, the Court specifically stated that was creating additional, limited exception public disclosure judicial documents determines should remain confidential. 
Id. 950 (internal citations omitted).  The court therefore held that records related payments and disbursements funds from the Judicial Expense Fund were not exempt from production.  Access the administrative records the judiciary does not interfere with the plenary power inherent authority the Louisiana Supreme Court.  Finally, the court explained that its decision reflects basic tenet the democratic system that people have right know about the operations their government, including the judicial branch (Id.) and that its decision buttressed the reality that providing public access the judiciary's financial records reflecting the use public funds serves promote trustworthiness the judicial process, and provides the public with better understanding the judicial system, including better perception its fairness.  Public access judicial records further serves curb judicial abuse.  
Id. 951. 
The records the Judicial Expense Fund are different than the records requested Judicial Watch the instant matter.  Judicial Watch seeks access the administrative records the ARC educate the people Colorado about the operations their government, specifically the details about the ARCs investigation non-Colorado attorneys and how the investigation affected the ARCs ability perform his duties Colorado. 
Similarly, the ARC incorrectly claims that the Colorado Supreme Court has plenary power determine the circumstances under which the records requested Judicial Watch may disclosed. Judicial Watch has previously demonstrated, the extent that the Supreme Court might have plenary power over disclosure the records the ARC  and Judicial Watch does not concede that does  such power derived from the Colorado Supreme Courts exclusive jurisdiction over attorneys and the authority regulate, govern, and supervise the practice law Colorado. Yet, the records requested Judicial Watch not concern any Colorado attorneys the regulation, governance, supervision the practice law Colorado. other words, there nexus whatsoever between the Arizona attorneys under investigation the ARC and the practice law Colorado. 

CONCLUSION 
For the reasons set forth above, the Court should find that CORA applies the administrative records the ARC, which are the only types records requested Judicial Watch. Moreover, for the reasons set forth Judicial Watchs opening brief, answer brief, and the March 28, 2011 hearing, the Court should find that the records requested Judicial Watch are Colorado public records subject disclosure under CORA and order the ARC disclose Judicial Watch, without further delay, all responsive public records not subject claim withholding. addition, and facilitate the determination whether any responsive public records may lawfully withheld from Judicial Watch under CORA, the Court should order the ARC produce index all public records responsive Judicial Watchs CORA request that remain subject claim withholding. 
Dated: April 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) (Admitted Pro Hac Vice) 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 

CERTIFICATE SERVICE hereby certify that this 8th day April, 2011 true and correct copy the above JUDICIAL WATCH, INC.S SUPPLEMENTAL 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