Update: Douglas County Judge Rejects School Board's Motion to Dismiss Lawsuit

Douglas County Board of Education president Mike Peterson during the March 22 meeting that formalized the hiring of new superintendent Erin Kane.
Douglas County Board of Education president Mike Peterson during the March 22 meeting that formalized the hiring of new superintendent Erin Kane. Douglas County School District via YouTube
Update: On April 29, Douglas County District Court Judge Jeffrey K. Holmes rejected a request to dismiss a lawsuit filed by resident Robert Marshall that claimed Douglas County Board of Education members Mike Peterson, Becky Myers, Christy Williams and Kaylee Winegar had violated Colorado Open Meetings Law by engaging in a series of one-to-one meetings outside a public forum while engineering the ouster of superintendent Corey Wise.

The order issued by Holmes, who'd already granted a preliminary injunction against the board based on the lawsuit, is just three pages long, and the passages dealing with the motion to dismiss are succinct. A key example: "The Court finds that the Complaint does set forth factual allegations that raise the right to relief above the speculative level and provide plausible grounds for relief. The Court, therefore, finds the motion to dismiss...lacks merit."

Marshall offered this in response to the judge's order: "So the Court denied the DougCo BoE's and its four new directors' motion to dismiss the COML suit today. ... Complete waste of the district's money and the court's time (along with my own) to have even filed this frivolous motion (and this was actually frivolous as an example to people who don't understand the term and keep calling the suits against the BoE frivolous)."

Click to read the order regarding the motion to dismiss in Robert Marshall v. Douglas County Board of Education, et al.

Here's the original post, published at 8:24 a.m. April 29:

The legal actions triggered by the February 4 firing of Douglas County School District superintendent Corey Wise by the Douglas County Board of Education just keep coming.

On April 25, a week after Wise filed discrimination charges against DCSD as a precursor to a lawsuit, Gessler Blue, the latest law firm to represent the board's conservative majority of president Mike Peterson as well as members Becky Myers, Christy Williams and Kaylee Winegar, asked Dougco's district court to toss or narrow an order requiring them to stop conducting one-on-one meetings that allegedly violate Colorado Open Meetings Law.

Meanwhile, Douglas County resident Robert Marshall, whose complaint triggered the ruling that Peterson and company are protesting, has launched a GoFundMe campaign to finance yet another complaint related to the state's so-called Sunshine Laws, which he argues continue to be abused by the boardmembers who ousted Wise.

In what is technically known as a "Motion to Reconsider or to Clarify Order Re: Plaintiff’s Motion for a Preliminary Injunction," attorney and former Colorado secretary of state Scott Gessler and partner Geoffrey Blue contend that the judge in the case "misapplied the law and did not make sufficient findings regarding the factors that need to be proved to justify the implementation of a preliminary injunction. As such, the Court improvidently entered the Order, and it must reconsider that decision."

Gessler and Blue believe the Court erred in the following three ways:
1) The Court determined that the Colorado Open Meetings Law (“COML”) prohibits members of the Douglas County School Board from discussing public business between two members;

2) The Court failed to make findings to satisfy the factors Plaintiff must prove to justify imposition of a preliminary injunction; and,

3) The Court entered a preliminary injunction that is confusing and overly broad and regulates the Board’s conduct indefinitely.
The frustration over the order isn't far beneath the surface, as indicated by this passage castigating Marshall's legal theory: "Plaintiff bears the burden of proof to show a threatened future harm, yet he introduced no evidence whatsoever demonstrating any possibility that any Board Director would violate the COML in the future — he merely argued that because Defendants are defending their actions, they will continue to act in the same way. This is not sufficient. If Plaintiff’s view stated the law accurately, a defendant could never defend its actions in the preliminary injunction context without essentially conceding this factor — obviously an absurd result."

Marshall continues to closely monitor the board, and he doesn't like what he's seen lately. In a message shared with Westword after an April 26 Board of Education meeting, Marshall wrote that he would be interested "if the BoE disclosed to the public that the parameters of a settlement of the COML lawsuit had been offered to the BoE where the plaintiff would drop the claim to reinstate Mr. Wise and the BoE would simply follow the Sunshine Law like the Court directed in its order and let the injunction remain in place."

Then, on April 28, Marshall created a GoFundMe page under the heading "Sunshine Law: Colorado Open Meetings Act." In its introduction, he contends that "the Douglas County School District continues to violate Colorado's Sunshine Laws and refuses to comply due to their apparent belief that no one will challenge them and take them to court."

Marshall specifically mentions four items "that I want to obtain for the public interest," including binders given to the new boardmembers at a retreat in late 2021 in Estes Park; notes and voicemails referenced by Christy Williams "regarding her decision to hire Gessler as counsel," as well as a message from Gessler asking about the case; an email from minority boardmember Elizabeth Hanson, who opposed Wise's ouster, to board president Peterson where she "explained the ethics complaint she filed" against the conservative bloc's previous attorney, Will Trachman; and documentation about Trachman's representation withdrawal.

The page's goal is $2,700, which Marshall explains with this: "These funds will be used to move forward on a 14-day letter and discussion with the DCSD as a prelude to a CORA suit (likely requiring about $2K) and then the suit filing fee and initial costs for the suit (approximately $700)." However, he stresses that even if the full amount isn't obtained — $665 had been pledged as of this morning — "this action will move forward for the public interest no matter what."

Click to read the motion to clarify or reconsider the order in Robert Marshall v. Douglas County Board of Education, et al.
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Michael Roberts has written for Westword since October 1990, serving stints as music editor and media columnist. He currently covers everything from breaking news and politics to sports and stories that defy categorization.
Contact: Michael Roberts