DISTRICT COURT, DOUGLAS COUNTY, COLORADO
Douglas County Justice Center
4000 Justice Way
Castle Rock, CO 80109
(720) 437-6200
Plaintiff: ROBERT C. MARSHALL,
v.
Defendants: DOUGLAS COUNTY BOARD OF
EDUCATION; MICHAEL PETERSON, in his official
capacity as a member thereof; REBECCA MYERS, in her
official capacity as a member thereof; KAYLEE WINEGAR,
in her official capacity as a member thereof; and CHRISTY
WILLIAMS, in her official capacity as a member thereof, COURT USE ONLY
Attorneys for Defendants Douglas County Board of
Education, Peterson, Myers, Winegar, and Williams (in Case No: 2022CV30071
official capacities)
Andrew D. Ringel, #24762 Division: 5
Matthew J. Hegarty, #42478
Joshua M. Raaz, #39338
Hall & Evans, L.L.C.
1001 17th Street, Suite 300
Denver, Colorado 80202
Telephone : (303) 628-3300
Fax : (303) 628-3368
[email protected] [email protected] [email protected] DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED VERIFIED
COMPLAINT
Defendants Douglas County Board of Education (“Board”), Michael Peterson, Rebecca
Myers, Kaylee Winegar, and Christy Williams (“Defendants”), through counsel, Hall & Evans,
L.L.C., and pursuant to C.R.C.P. 12(b)(1) and 12(b)(5), respectfully request this Court dismiss
Plaintiff’s First Amended Verified Complaint (“Complaint”) with prejudice, stating as follows:
C.R.C.P. 121 § 1-15(8): Counsel for Defendants conferred with counsel for Plaintiff
Robert C. Marshall (“Plaintiff’) as to the relief sought in this Motion. Plaintiff opposes the Motion.
I. INTRODUCTION
Plaintiff initiated this lawsuit on February 4, 2022, by serving Defendants Peterson, Myers,
Winegar and Williams (“Director Defendants”) during a Special Meeting of the Board which had
been duly noticed the prior day. 1 Generally, Plaintiff attempts three claims for relief, contending:
Director Defendants, and thus the Board, violated the Colorado Open Meetings Law (“COML”),
C.R.S. § 24-6-402, in their decision at this Special Meeting to terminate the employment of
Douglas County School District Superintendent Corey Wise without cause per the Board’s clear
and unequivocal right to do so pursuant to the Superintendent’s Contract; future unspecified
encounters among Director Defendants, similar in nature and size to the ones which occurred
allegedly in connection with the decision to terminate Superintendent Wise will violate COML
and must be enjoined; and the decision at this Special Meeting to terminate Superintendent Wise
was made without complying with COML and the decision should be declared null and void.
The Court must dismiss Plaintiff’s Complaint for numerous reasons: (1) Director
Defendants are not proper defendants as they were acting in their official capacities as Directors
and including them in the lawsuit in their official capacities is duplicative of the claim against the
Board; (2) the encounters Director Defendants allegedly had with each other never constituted a
“meeting” as defined under COML, meaning COML never was violated; (3) even if COML was
violated, which Defendants deny, the Complaint has factual information sufficient to find a cure;
1
Let’s be clear: as the Complaint freely admits (as it must), the February 4, 2022, meeting
was duly publicly noticed first, this lawsuit was filed second, and its accompanying requested TRO
was denied as moot by this Court. [E.g., Am. Compl. at 10 ¶¶ 16-17; see also Docket].
2
(4) Plaintiff is not entitled to a Declaratory Judgment in his favor on his first claim; (5) Plaintiff’s
second claim for relief contains only speculation and conclusory allegations which are not entitled
to be taken as factual and which seek relief which cannot be imposed upon a local public body; (6)
the Board’s decision, through the majority vote of Directors at a duly noticed public meeting, to
terminate Superintendent Wise’s contract involves a nonjusticiable political question; and (7) the
doctrine of separation of powers bars Claim Three of the Complaint.
II. STANDARD OF REVIEW
A claim must be dismissed for “failure to state a claim upon which relief can be granted.”
C.R.C.P. 12(b)(5). Such a motion addresses a complaint’s legal sufficiency. E.g., City of Colo.
Springs v. Andersen Mahon Enters., LLP, 260 P.3d 29, 32 (Colo. App. 2010). If a complaint
lacks factual allegations sufficient to raise a right to relief “above the speculative level” and omits
“plausible grounds to infer” a claim exists under C.R.C.P. 8 and C.R.C.P. 12(b)(5), it must be
dismissed. Warne v. Hall, 2016 CO 50, ¶¶ 9, 24 (“only a complaint that states a plausible claim
for relief survives a motion to dismiss”) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
(2007), and Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)); Blooming Terrace No. 1, LLC v. KH
Blake St., LLC, 2017 COA 72, ¶¶ 9, 20 (dismissing complaint under Warne). It cannot seriously
be contended Warne did anything other than ratchet up the pleading bar for plaintiffs. Warne’s
plausibility standard emphasizes facts pleaded as legal conclusions (i.e., conclusory statements)
are not entitled to the assumption of truth, including conclusory statements about intent. Scott v.
Scott, 2018 COA 25, ¶ 19 (dismissing claim for failing to plead sufficient nonconclusory facts
showing intent); see Walker v. Women’s Prof’l Rodeo Ass’n, 2021 COA 105M, ¶ 70 (under
plausibility standard, “we do not assume the truth of…conclusory statements” on intent). If a
complaint “suffers from a dearth of factual allegations” on issues critical to its claims “and the
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conclusory allegations it does contain are insufficient to rise above a purely speculative level,”
dismissal is required. Defend Colorado v. Polis, 2021 COA 8, ¶ 42. And if a desired inference
will be speculative and “support only a sheer possibility,” on the grounds facts sufficient to draw
the inference are lacking, the Complaint must be dismissed too. In re Estate of Everhart, 2021
COA 63, ¶¶ 42-43. And when allegations are just as consistent with proper conduct as with
improper conduct, the plausibility standard is not met and dismissal is proper. Everhart, ¶ 42.
Conclusory allegations are not entitled to an assumption that they are true and may be
ignored. See Warne, ¶ 27. The Tenth Circuit, which in terms of Fed.R.Civ.P. 12(b)(6) now
provides guidance relevant to C.R.C.P. 12(b)(5), clarified “plausibility” invokes “the scope of
the allegations in a complaint: if they are so general that they encompass a wide swatch of
conduct, much of it innocent, then the plaintiffs have not nudged their claims across the line from
conceivable to plausible.” Robbins v. Okla., 519 F.3d 1242, 1247 (10th Cir. 2008) (internal
quotations and citations omitted). The requirement of plausibility serves not only to weed out
claims lacking a reasonable prospect of success “but also to inform the defendants of the actual
grounds of the claim against them.” Id. at 1248. Without sufficient factual allegations in the
complaint, “it is hard to see how a claimant could satisfy the requirement of providing not only
‘fair notice’ of the nature of the claims, but also ‘grounds’ on which the claims rests.” Id.
III. ARGUMENT
A. Director Defendants Are Not Proper Party Defendants and Should Be Dismissed
First, Director Defendants all are members of the Board and have been named solely in
their official capacities in the Complaint. In relation to a multi-member local body of elected
officials, like the Board, Colorado law is clear: a suit against a member of that body in their
official capacity only is the same thing as one against the body as an entity. E.g., C.R.S. § 22-
4
32-101; Dorsey v. Pueblo Sch. Dist. 60, 140 F. Supp. 3d 1102, 1122 (D. Colo. 2015). In the
analogous context of federal civil rights law, in relation to naming both the municipal entity and
its official in their official capacity only, “Naming either is sufficient. Naming both is redundant.”
Stump v. Gates, 777 F. Supp. 808, 816 n. 3 (D. Colo. 1991). Given Plaintiff already named the
local body as a Defendant (i.e., the Board), all claims in the Complaint against the four Directors
in their official capacities are redundant, and such claims should be dismissed with prejudice.
B. Director Defendants’ Encounters Did Not Rise to the Level of a Meeting Under COML
Second, the encounters Director Defendants had with each other prior to their duly noticed
public meeting on February 4, 2022, never constituted a “meeting” as defined under COML.
A “meeting” is any kind of gathering, convened by a public body to discuss public business,
in person, by telephone, electronically, or by other means of communication. See C.R.S. § 24-6-
402(1)(b). Stated differently, a meeting is subject to the COML “if it concerns a matter related to
the policy-making function of the ... public body holding or attending the meeting.” Costilla Cnty.
BOCC v. Costilla Cnty. Conservancy Dist., 88 P.3d 1188, 1194 (Colo. 2004).
All meetings of the lesser of a quorum or three or more members of a local public body,
where any public business is discussed or any formal action may be taken, are “meetings” open to
the public at all times and require advance public notice. See C.R.S. § 24-6-402(2)(b)-(c).
Generally, if a local public body takes action, at a meeting held without notice, such action is
invalid. See generally Hyde v. Banking Bd., 552 P.2d 32 (Colo. App. 1976).
Plaintiff claims a “meeting” occurred in violation of COML in a most peculiar fashion —
he argues several one-on-one discussions between different Director Defendants at different times
need to be assessed collectively. The Complaint alleges in these one-on-one conversations,
Director Defendants discussed “the possibility of terminating the Superintendent’s contract” and,
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allegedly, decided collectively to terminate the contract. But Plaintiff uses the term “collectively”
because, in relation to a local public body like the Board, he cannot substantiate any “meeting” as
defined in COML actually occurred. Nowhere does the Complaint allege a gathering of a lesser
of a quorum or 3 or more Board Directors—which here is a minimum of three (3) Directors—had
any kind of gathering to discuss public business. No three or more person meeting, conversation,
or email exchange of any kind is alleged anywhere in the Complaint Because there was no
simultaneous gathering of at least three Directors, there was no “meeting,” and without a
“meeting,” Plaintiff’s First Claim for Relief should be dismissed.
No Colorado court has adopted Plaintiff’s theory a series of meetings between members of
a public body, none of which violate the requirements of COML separately, can be aggregated
together to create a violation of COML. Courts must not judicially legislate by reading a statute to
accomplish something its plain language does not mandate. Shelter Mut. Ins. Co. v. Mid-Century
Ins. Co., 246 P.3d 651, 661 (Colo. 2011). Had the legislature wanted to adopt Plaintiff’s theory, it
could have drafted or amended COML to encompass such conduct. It did not, and no legitimate
basis exists for this Court to extend COML beyond the actual plain language of the statute. 2
C. Any Alleged Violation of COML Was Cured By Means of a Duly Noticed Public Meeting
at Which Vigorous Debate and Discussion of the Issues Occurred In Front Of the Public
Third, the entire Complaint also fails to state a claim because it admits facts more than
sufficing to establish a cure of any alleged COML violation, in compliance with Colorado law.
Beyond dispute, a local public body can cure an alleged violation of COML. See generally
Colo. Off-Highway Vehicle Coal. v. Colo. Bd. of Parks & Outdoor Recreation, 2012 COA 146
2
Defendants address other jurisdictions’ precedent on which Plaintiff relies to support his
theory in their Response to Plaintiff’s Amended Motion for Preliminary Injunction filed herewith.
6
(“COHVC”). Even though COML does not address specifically whether a public body could
violate its plain terms and then cure the violation, a public body may “cure” a prior violation of
COML “by holding a subsequent complying meeting, provided the subsequent meeting is not a
mere ‘rubber stamping’ of an earlier decision made in violation of [COML].” Id., ¶¶ 25, 28, 33.
A Board does not merely “rubber stamp” the results of noncompliant meetings where, by way of
example and not limitation, it holds a meeting subsequent to the alleged violation in the course of
which it “heard additional comment from several ‘key players,’” received public comment, “and
engaged in renewed deliberations before announcing its ultimate decision.” Id., ¶ 34; see also Van
Alstyne v. Housing Auth., 985 P.2d 97 (Colo. App. 1999).
Here, as the Complaint admits, on February 3, 2022, the Board duly noticed a Special
Meeting for the next day. [Compl. at 7 ¶ 16]. Then, on February 4, 2022, the duly-noticed Special
Meeting was held. 3 [Compl. at 7-8 ¶¶ 18, 19]. The publicly available recording of this meeting
establishes the meeting: was well-attended by the public, virtually cheek-by-jowl; lasted for more
than three hours; was the subject of vigorous and impassioned debate and discussion amongst the
Board; included substantial comment by Superintendent Wise; and also included both several
3
Plaintiff even gives the Court a link to the publicly accessible recording of this public
Special Meeting. [Compl. at 8 ¶ 19]; see https://www.youtube.com/watch?v=A4t2UsJKQdg (last
accessed Feb. 23, 2022). Due not only to this paragraph of the Complaint, but also to the fact of
the recording being publicly available and its authenticity not subject to reasonable dispute, the
recording of this meeting forms part of the factual context of the Complaint, which the Court is
required to consider in ruling on this Motion. This is because Colorado courts weighing a Rule 12
motion to dismiss must consider, along with the motion, facts the Complaint alleges, all documents
or tangible things attached to the Complaint or incorporated by reference, and matters proper for
judicial notice. Norton v. Rocky Mtn. Planned Parenthood, Inc., 2018 CO 3, ¶ 7; Gen. Steel
Domestic Sales, LLC v. Hogan & Hartson, LLP, 230 P.3d 1275, 1279 (Colo. App. 2010); Walker
v. Van Laningham, 148 P.3d 391, 397 (Colo. App. 2008); Yadon v. Lowry, 126 P.3d 332, 336
(Colo. App. 2005). The Court need not accept legal conclusions or factual allegations at odds with
such documents’ express terms, as their legal effect is determined by their contents, not the
complaint. See Stauffer v. Stegemann, 165 P.3d 713, 716 (Colo. App. 2006).
7
comments by the public which the microphones did not register and public comments which
Director Ray read into the record. Also established by the verbal statements of both the “majority”
and “minority” Board Directors at this hearing was the substantial public comment received by the
Directors in the 48-72 hours leading up to the hearing. Hence, every single hallmark of COHVC,
and more, was present and more than sufficed to effect a compliant cure of any alleged prior
violation of COML under the admitted circumstances of this case. There can be no straight-faced
argument the public was deprived of discussions, motivations, policy arguments, and other
considerations which led to the discretion exercised by the Board in exercising its clear and
unequivocal right to terminate the employment of Superintendent Corey Wise without cause
pursuant to his contract. Cf. Bagby v. Sch. Dist. No. 1, 528 P.2d 1299, 1302 (Colo. 1974). This is
because COML’s purpose “is to require open decision-making, not to permanently condemn a
decision” allegedly made in violation of COML. COHVC, ¶ 31. Such open decision-making
plainly occurred at the February 4, 2022, duly-noticed public Special Meeting, satisfying COML.
D. Plaintiff Is Not Entitled to a Declaratory Judgment in His Favor on His First Claim
Fourth, Plaintiff’s request for entry of a declaration Director Defendants’ official conduct
violated COML is ill advised. Plaintiff is not entitled to an affirmative declaratory judgment.
Only the Court has the power to enter a declaratory judgment; such a claim cannot be
presented to a jury. See C.R.S. § 13-51-105 (“Courts of record within their respective jurisdictions
have power to declare rights, status, and other legal relations[.]”); C.R.S. § 13-51-112 (“Further
relief based on a declaratory judgment or decree may be granted when necessary or proper. The
application therefor shall be by petition to a court having jurisdiction to grant the relief.”).
Under the Colorado Uniform Declaratory Judgment Law (CUDJL), C.R.S. §§ 13-51-101
to -115, Plaintiff must have a cognizable claim. If no question presented properly is cognizable
8
under the CUDJL, dismissal must occur. Fairall v. Frisbee, 92 P.2d 748, 748 (Colo. 1939)
(“Nothing is left for determination under the Declaratory Judgment Law. The judgment,
accordingly, is reversed, and the cause remanded with directions to dismiss”); Beacom v. Bd. of
Cnty. Comm’rs, 657 P.2d 440, 447 (Colo. 1983) (declaratory judgment proceeding “must be based
upon an actual controversy and not be merely a request for an advisory opinion”); Associated
Master Barbers v. Journeyman Barbers, 285 P.2d 599, 601 (Colo. 1955) (“[T]his Court, as it
repeatedly has held, will not render an advisory opinion in declaratory-judgment actions.”).
Because Plaintiff failed to identify a “meeting” as defined in COML’s plain text where
three or more Board Directors were present simultaneously and discussing public business which
occurred outside the context of a duly noticed public meeting, and given any alleged violation was
cured by means of a subsequent meeting which more than complied with COML, there exists no
controversy and Plaintiff merely seeks an advisory opinion from the Court. 4 Given Plaintiff’s First
Claim is now properly understood as seeking an advisory opinion, it should be dismissed.
E. Plaintiff’s Second Claim Is Based on Speculation and Lacks Sufficient Factual
Allegations, and His Request for Relief Cannot Plausibly Be Granted Against the Board
Fifth, Plaintiff’s second claim contains only speculation and nonfactual conclusory
allegations and seeks relief which cannot be imposed upon a local public body like the Board.
4
There’s another, more fundamental reason Plaintiff merely seeks an advisory opinion: on
February 22, 2022, Superintendent Wise was hired by Jefferson County School District No. R-1.
[Defs. PI Hrg. Exh. E]. As such, at least Plaintiff’s Third Claim (and possibly the majority of any
entitlement to attorney fees) is moot given that Claim signifies the gravamen of the Complaint and
a ruling thereon, if rendered, will have “no practical legal effect” on the existing controversy. Van
Schaack Holdings, Ltd. v. Fulenwider, 798 P.2d 424, 426 (Colo. 1990); C.R.C.P. 12(h)(3). The
Court should not render a judicial opinion on a matter mooted through ensuing events. W-470
Concerned Citizens v. W-470 Highway Authority, 809 P.2d 1041, 1043 (Colo. App. 1990); see
Freedom From Religion Found., Inc. v. Romer, 921 P.2d 84, 88 (Colo. App. 1996).
9
Plaintiff alleges the Board by and through Director Defendants (but apparently not the other
Directors) will engage in future conduct that violates COML, but fails to articulate what that
specific future conduct will be and how it will violate COML. Plaintiff simply declares two Board
Directors, who engage in a one-on-one meeting where they happen to talk about topics related to
public business but no decision is made, and who then separate and have other one-on-one
meetings with other Board Directors where topics related to public business also happen to be
discussed but again no decision is made, would constitute future violations of COML. Such rank
speculation is precisely the conclusory allegation lacking past experience or present data which
Warne and related cases require this Court to disregard as nonfactual. See Warne, ¶¶ 9, 24, 27.
What’s more, by Plaintiff’s logic, any encounter between two and only two Board Directors, where
the discussion happens to turn to public business, and the Directors simply seek to understand each
other’s preexisting, privately-held views, then relay those preexisting, privately-held views to
other individual Directors—all, as here, without actually making any decision—would necessitate
a public hearing and its attendant notice and public comment requirements.
This logic is faulty for the most basic reason that, with respect to local government, “good
government does not require exchange of information and benefitting by the input and information
given by your colleagues on a governmental board.” State ex rel. Zecchino v. Dane Cnty., 909
N.W.2d 203, 206 (Wis. App. 2018) (quoting lower court reasoning which was approved in holding
local public body did not violate state open meetings law); State ex rel. Holmes v. City of
Rhinelander City Council, 959 N.W.2d 91, ¶ 19 (Wis. App. 2021) (“[I]t is not enough to allege
that there were communications between the members regarding their personal positions, or that
they asked other members for their opinions.”). No question exists COML does not prohibit all
communications between elected officials about public business. Two City Council members, two
10
county commissioners, and yes, two Board Directors are not precluded by COML from discussing
public business with each other. Plaintiff seeks a preliminary and permanent injunction that would
not allow this clearly permissible conduct. This sought-after relief rests on far from plausible
allegations and, if granted, will result in acute decisional paralysis, requiring its dismissal.5
F. The Decision to Terminate Superintendent Wise Involves a Nonjusticiable Political
Question, which Bars Claim Three
Sixth, the Board’s decision to terminate Superintendent Wise (who has now obtained other
employment) presents a nonjusticiable political question committed to a coordinate branch of
government and therefore is inappropriate for resolution or intervention by the judicial branch.
Several features characterizing a case raising a nonjusticiable political question include the
following, any one of which is sufficient to find a political question exists:
Prominent on the surface of any case held to involve a political question is found a
textually demonstrable constitutional commitment of the issue to a coordinate
political department; or a lack of judicially discoverable and manageable standards
for resolving it; or the impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial discretion; or the impossibility of a
court's undertaking independent resolution without expressing lack of the respect
due coordinate branches of government; or an unusual need for unquestioning
adherence to a political decision already made; or the potentiality of embarrassment
from multifarious pronouncements by various departments on one question.
Colo. Common Cause v. Bledsoe, 810 P.2d 201, 205 (Colo. 1991) (quoting Baker v. Carr, 369
U.S. 186, 217 (1962)). To find a political question, the Court need identify only one factor, not
all. Schneider v. Kissinger, 412 F.3d 190, 194 (D.C. Cir. 2005). Claims that present a political
question must be dismissed. See 13A Wright & Miller, Fed. Prac. & Proced. § 3534.3 (2007).
5
Such relief also is unable to be granted for the reasons enumerated in Defendants’
Response to Plaintiff’s Amended Motion for Preliminary Injunction.
11
All six of these factors are present here, to wit: (1) on the face of this case, the
administration of the District and the selection and employment of its superintendent are
committed to the Board, a local public body with decision-making powers, see C.R.S. § 22-32-
110(1)(g); (2) there is a lack of judicially discoverable and manageable standards for resolving the
Complaint because the Board is the primary policy-maker for the District; (3) no decision can be
made without the initial policy determination of whether a personnel decision satisfies criteria for
changes as outlined in the Board’s authority, a kind of determination clearly for nonjudicial
discretion; (4) it would be impossible for this Court to undertake independent resolution of the
Complaint without exhibiting a lack of respect for the Board charged with implementing political
and policy decisions for the District; (5) there’s an unusual need for unquestioning adherence to
the Board’s publicly taken and political and policy decision to implement personnel termination;
and (6) the substantial likelihood of embarrassment of the judicial branch for multifarious
pronouncements by both the “majority” and “minority” Board Directors. See Bledsoe, 810 P.2d at
205. Although the COML authorizes injunctive relief in the abstract, C.R.S. § 24-6-402(9)(b), any
such injunctive relief cannot be indiscriminate, cannot ignore the political context of the Board’s
decision to terminate the Superintendent’s contract, and also cannot be in the nature of mandamus.
But that is what Plaintiff wants—a judicial interpretation of COML, never before adopted by any
Colorado court, and then an injunction which says “follow COML as I want it to be interpreted”—
and as indicated herein, that is exactly the type of injunctive relief which Plaintiff cannot obtain.
Any other outcome necessarily requires this Court to improperly interject itself into the Board’s
political dispute and effectively take sides in that dispute, something the political question doctrine
strongly counsels against courts doing.
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G. The Doctrine of Separation of Powers Bars Claim Three of Plaintiff’s Complaint
Seventh and finally, the relief Plaintiff requests in his Complaint’s Third Claim would
require too much judicial oversight in the management and operation of the Board, thus would
constitute a violation of the doctrine of separation of powers and must be dismissed too.
Article III of the Colorado Constitution provides,
The powers of the government of this state are divided into three distinct
departments, --the legislative, executive and judicial; and no person or
collection of persons charged with the exercise of powers properly belonging
to one of these departments shall exercise any power properly belonging to
either of the others, except as in this constitution expressly directed or
permitted.
This constitutional provision causes the doctrine of separation of powers to be inherent in Colorado
law. See Meyer v. Lamm, 846 P.2d 862, 872 (Colo. 1993). The “fundamental meaning” of the
doctrine of separation of powers is that “the three branches of government are separate, coordinate,
and equal.” Pena v. Dist. Court, 681 P.2d 953, 955-56 (Colo. 1984).
The power of the courts to order departments of the executive branch to take action is
extremely limited. Jones v. Bd. of Chiropractic Examiners, 874 P.2d 493, 494 (Colo. App. 1994).
Even when a court would otherwise have jurisdiction over the subject matter of a dispute, an order
is void where the court exceeds its jurisdiction by intruding into areas within the provenance of
another branch of government. See Kort v. Hufnagel, 729 P.2d 370, 373 (Colo. 1986). The
doctrine of separation of powers “imposes upon the judiciary a proscription against interfering
with the executive or legislative branches and operates to prohibit the judiciary from preempting
an executive agency from exercising powers properly within its own sphere.” Id. Neither can
courts, under pretense of deciding a case, appropriate power vested in other branches. People v.
Zapotocky, 869 P.2d 1234, 1244 (Colo. 1994) (“[T]he decision to request dismissal of pending
13
criminal charges is within the district attorney’s discretion, and this decision may not be controlled
or limited by judicial intervention.”).
Thus, mandamus relief is available only to compel the performance of a nondiscretionary
duty and at no other time. See Hall v. City & Cnty. of Denver, 190 P.2d 122, 125 (Colo. 1948).
If an act involves or requires the exercise of some degree of official discretion or exercise of
judgment, a district court possesses no power to compel a state or local official to perform that act.
See People v. Cnty. Comm’rs, 127 P. 960, 960 (Colo. 1912). Even though a court may have power
to direct a government official to proceed to exercise her discretion, it cannot direct the manner in
which that discretion is exercised. See, e.g., Lamm v. Barber, 565 P.2d 538, 542 (Colo. 1977).
Here, there can be no question the power of administration and effectuation of decisions is
vested in the Board. Nevertheless, Plaintiff essentially claims the Board abused its discretion by
terminating the Superintendent. But as stated above, if an act involves or requires the exercise of
some degree of official discretion or judgment, a district court does not have power to compel the
official or body to act or to reverse its action. See Cnty. Comm’rs, 127 P. at 960. At bottom, the
relief the Complaint requests would require too much judicial oversight in the management and
operation of the Board. This Court may exercise authority over decisions respecting the Board
only where the Colorado Constitution expressly directs or permits, but Plaintiff identifies no
constitutional provision either expressly or impliedly granting the judicial branch any authority to
make decisions with respect to the management, operation, or control of the Board or nullifying
action already taken by the Board. Hence, this Court should not exercise any such judicial
authority in this case, as doing so would force this Court to micromanage detailed aspects of the
Board’s past public decisions and ongoing operations, a situation fundamentally inconsistent with
14
this Court’s role under the doctrine of separation of powers and the authority of Board Directors
to meet individually with another Director to discuss public business without arriving at a decision.
IV. CONCLUSION
In conclusion, for the foregoing reasons, Defendants Douglas County Board of Education,
Michael Peterson, Rebecca Myers, Kaylee Winegar, and Christy Williams request entry of an
Order: dismissing Plaintiff’s Complaint against them with prejudice under C.R.C.P. 12(b);
granting judgment in their favor; awarding them all reasonable attorney fees and costs under
applicable law; and granting all other relief this Court deems just and appropriate.
Dated and respectfully submitted this 23rd day of February, 2022.
s/ Matthew J. Hegarty
Andrew D. Ringel, #24762
Matthew J. Hegarty, #42478
Joshua M. Raaz, #39338
Hall & Evans, L.L.C.
1001 17th Street, Suite 300
Denver, Colorado 80202
Telephone : (303) 628-3300
Fax : (303) 628-3368
[email protected]
[email protected]
[email protected]
Attorneys for Defendants
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CERTIFICATE OF SERVICE
I hereby certify that the foregoing MOTION TO DISMISS PLAINTIFF’S FIRST
AMENDED VERIFIED COMPLAINT FROM DEFENDANTS was filed this 23rd day of
February, 2022, via Colorado Courts E-Filing System (“CCES”) and served upon the following
via email, unless otherwise noted:
Attorneys for Plaintiff:
Steven D. Zansberg, CO Bar # 26634
Law Office of Steven D. Zansberg, L.L.C.
100 Fillmore Street, Suite 500
Denver, CO 80206
(303) 385-8698
[email protected]Eric R. Coakley, CO Bar # 34238
COAKLEY, LLC
2373 Central Park Blvd., Suite 100
Denver, CO 80238
(303) 500-1778
[email protected] s/ Matthew J. Hegarty
Matthew J. Hegarty
Hall & Evans, L.L.C.
* In accordance with C.R.C.P. 121 § 1-26(7)-(9), a printed copy of this document with original signatures is being
maintained by this Office and will be made available for inspection by other parties or the Court upon request. *
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