DISTRICT COURT, DOUGLAS COUNTY, COLORADO

Douglas County Justice Center

4000 Justice Way DATE FILED: March 22, 2022 10:10 AM
Castle Rock, CO 80109 FILING ID: A907EDE11FFDA
(720) 437-6200 CASE NUMBER: 2022CV30071

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; CHRISTY
WILLIAMS, in her official capacity as a member thereof; COURT USE ONLY

Attorneys for Plaintiff:

Case No: 2022CV30071
Steven D. Zansberg, CO Bar # 26634
Law Office of Steven D. Zansberg, L.L.C. Division: 5
100 Fillmore Street, Suite 500
Denver, CO 80206
(303) 385-8698
steve@zansberglaw.com

Eric R. Coakley, CO Bar # 34238

COAKLEY, LLC
2373 Central Park Blvd. - Suite 100
Denver, CO 80238
Tel. (303)500-1778
coakley@coakleylaw.com

PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION

TO DISMISS FIRST AMENDED COMPLAINT
 Plaintiff Robert C. Marshall, by and through his undersigned counsel, hereby

responds to the Defendants’ Motion to Dismiss (“Motion”) the First Amended Complaint

(“FAC”).

INTRODUCTION
Defendants’ Motion was filed prior to the February 25, 2022 hearing on the Plaintiff’s

motion for preliminary injunction and the Court’s issuance of that injunction on March 9,

2022. Nevertheless, at the time the Motion was filed, both the Defendants and their counsel

had in their possession the audio recordings of the phone conversations in which Defendants

admitted that the four named individual Defendants, acting as members of the Board of

Education (“BOE”), had discussed amongst themselves the contract of Superintendent Corey

Wise and had decided (“committed” in President Peterson’s words) to terminate that contract

immediately. Given that fact – that both Defendants and counsel were fully apprised of what

had actually transpired, not merely what had been accurately alleged in the FAC – their

repeated denial of having committed these COML violations, in the Motion and at the

preliminary injunction hearing, raises serious ethical concerns. 1

The Court has already effectively denied the Motion by issuing the preliminary

injunction against all five Defendants, thereby rejecting the Defendants’ Response to

Plaintiff’s Motion for Preliminary Injunction which expressly incorporated the Motion

therein. (See Defs.’ Resp. at 6). 2 If the Motion was valid and meritorious, of course, the

1
See infra n. 4.
2
As set forth in the Defendants’ Response at 6, “[A]ll Defendants incorporate by reference
all arguments and authorities in their Motion to Dismiss Plaintiff’s First Amended Verified
Complaint (“Motion to Dismiss”), filed on February 23, 2022.” (emphasis added).

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Court could not have expressly found, as it did, 3 that the Defendants’ actions (four BOE

Directors engaging in a series of “one-one-one, daisy-chain” telephone conversations about

the Superintendent’s contract and deciding to demand his resignation), violated “the purpose”

not merely the spirit of the COML. And although that Order did not resolve the Plaintiff’s

Third Cause of Action (seeking a declaration that the unlawful decision to terminate the

Superintendent’s contract was “null and void”), it did recognize that the BOE’s subsequent

action, taken at the Special Meeting on February 4, 2022, was nothing more than a ratification

(“formaliz[ation]”) of their earlier-made decision. Accordingly, that claim has sufficient

merit to withstand the Defendants’ Motion (i.e., it presents a facially “plausible” claim).

As the FAC Introduction states, “This lawsuit asks this Court to find and declare that

the Board of Education of DCSD has violated the Open Meetings Law by engaging in

discussion of public business among three or more of its members without providing advance

notice and the opportunity for the public to observe those ’meetings.’” The averments of fact

in the FAC adequately plead three “plausible” claims for relief. The Motion should therefore

be denied.

3
Following the full evidentiary hearing, including consideration of the Stipulated Facts
admitted to by the Defendants, the Court ruled, “Here the evidence demonstrates that,
separately from a public meeting, the Individual Defendants engaged in discussions among
themselves and reached agreement that Wise should not continue as the DCSD
superintendent.” Order at 3 (emphasis added). “The evidence indicates that four members of
the board collectively committed, outside of public meetings, to the termination of Wise’s
employment.” Id. at 5 (emphasis added).

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 ARGUMENT

I. Applicable Legal Standard

In Colorado, motions to dismiss for failure to state a valid claim are viewed “with disfavor.”

Denver Post Corp. v. Ritter, 255 P.3d 1083, 1088 (Colo. 2011). Colorado uses the “plausibility

standard” when deciding a motion to dismiss under C.R.C.P. 12(b)(5). To survive a motion to

dismiss, the factual allegations of the complaint, which are taken as true, must be enough to raise a

right to relief above the purely speculative level and provide plausible grounds for relief Warne v.

Hall, 373 P.3d 588, 595 (Colo. 2016). Courts must accept all allegations of material fact as true

and view them in the light most favorable to the plaintiff, but they do not accept as true conclusory

allegations that are devoid of any factual support. Id. “[A] party must plead sufficient facts that, if

taken as true, suggest plausible grounds to support a claim for to relief.” Paradine v. Goei, 463

P.3d 868, 869 (Colo. App. 2018) (citation and internal quotation marks omitted).

II. Taken as True, The Facts Averred in the FAC State a Plausible Claim that the BOE
Violated the Open Meetings Law by Engaging in A Series of One-on-One “Daisy-Chain”
Conversations Among Three or More Members about Their Shared Desire (and
Decision) to Ask the Superintendent to Resign

Unquestionably, the pleaded averments in the FAC establish a plausible (indeed,

irrefutable) claim that the BOE, acting through the four individually named Director Defendants,

violated the Open Meetings Law. See, e.g., FAC ¶¶ 9 -10 (averring that “On . . . January 28, 2022,

Defendants Michael Peterson and Kristie Williams, acting in their official capacities as members of

the BOE, spoke with the Superintendent of DCSD, Corey Wise, and they presented him with an

ultimatum: either he notify them, by Wednesday, February 2, that he would resign his position

immediately or, four members of the BOE (a majority thereof) had decided that they would

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terminate his contract. [and] Prior to the above conversation with Superintendent Wise, the BOE

did not notice any public meeting (whether to convene in executive session or otherwise) in which

they would discuss the possibility of terminating the Superintendent’s contract.”); id. ¶ 11-15

(averring, inter alia, that on January 28, 2022, President Peterson informed Director Meek that

“he’s talked with the other [three] new board directors” outside of any public meeting, and that

they’d all “indicated” that they were “committed” to terminate the Superintendent’s contract).

Remarkably, the Motion represents to this Court that “No three or more person . . .

conversation [among the Directors]. . . of any kind is alleged anywhere in the Complaint.” Mot. at

6 (emphasis added). Furthermore, the Motion repeatedly states that there is no averment in the

FAC that three or more BOE Directors made any decision. See, e.g., Mot. at 10 (emphasis added):

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 discuss but again no decision is made, would constitute . . .
[a] violation[] of COML. . . .

[B]y plaintiff’s logic, any encounter between two and only two Board
Directors, where the discussion happened 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 [public notice and an open meeting].”
See also Mot. at 15 (asserting “the authority of the Board of Directors [sic] to meet with another

Director to discuss public business without arriving at a decision.”) (emphasis added).

Through 26 years of practice, undersigned counsel has not previously encountered a licensed

attorney (as opposed to a pro se litigant) so flagrantly misrepresenting to a court of law the factual

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allegations pleaded in a Complaint. 4

For purposes of the pending Motion, the FAC contains sufficient factual averments which,

credited as truthful (as Rule 12 requires), state a plausible claim that the BOE and the four named

individual Defendants violated the COML.

III. Taken as True, The Facts Averred in the FAC State a Plausible Claim that the BOE
and/or the Director Defendants Will, Unless Enjoined by This Court, Continue to Violate
the Open Meetings Law by Engaging in One-on-One “Daisy-Chain” Discussion of Public
Business Among Three or More Members

Defendants assert that the Second Claim for Relief is legally deficient, as a matter of law,

because while it avers that members of the BOE “will engage in future conduct that violates the

COML, [] it fails to articulate what that specific future conduct will be and how it will violate the

COML. Mot. at 10 (emphasis added). Once again, the FAC avers as follows:

19. During the BOE’s Special Meeting of February 4, 2022, Director

Williams defended the process by which the four majority members had
collectively discussed and decided to terminate Superintended Wise.
Stating “I followed the law to the letter,” she explained that she (and
presumably the other three newly elected members of the Board) were of
the belief that no violation of the COML occurs when they collectively
engage in discussion of public business outside of public view through a
series of conversations between less than three members (“at no time was I

4
The Plaintiff is a licensed New York attorney (with an inactive license in Colorado). Both he and
his undersigned counsel defer to the Court’s discretion whether any disciplinary action should be
taken in response to defense counsel’s blatant misrepresentations of the record. See, e.g., Colo. R.
Prof. Conduct 3.3(a) (1); Colo. R.Civ. P. Rule 11(a) (“The signature of an attorney constitutes a
certificate by him that he has read the pleading; that to the best of his knowledge, information, and
belief formed after reasonable inquiry, it is well grounded in fact . . . ”.) (emphasis added); Jensen
v. Matthews-Price, 845 P.2d 542, 544 (Colo. App. 1992) (holding that C.R.C.P. 11 is not limited
only to “pleadings” but applies equally to motions and other papers filed with the court). In this
regard, it is worth repeating that counsel for the Defendants had in their possession the audio
recordings of their clients’ phone conversations (Exhibits 1 and 2 admitted at the preliminary
injunction hearing) prior to their filing the Motion. And, with respect to the testimony presented at
that hearing, in which three Directors testified they had not reached any decision concerning Mr.
Wise’s contract prior to the public meeting of February 4, 2022, see Colo. R. Prof. Conduct Rule
3.3(a)(3) (imposing a duty on counsel to notify the Court of prior proffered testimony being
untruthful).

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 with more than one other director at any given moment.”). See
https://www.youtube.com/watch?v=A4t2UsJKQdg at 26:29 – 26:43.
Given this serious misunderstanding of how the Open Meetings Law
actually works, it is foreseeable that the four majority members of the
Board will continue to do so, unless ordered by the Court to refrain from
further violations of the COML.
...

26. Defendants have made clear that they believe that they do not violate
the Open Meetings Law when they collectively discuss public business
among three or more Board members, without public notice or public
observance of the discussion, so long as they don’t engage in simultaneous
discussion among three or more of them.

27. Defendants therefore have indicated that they intend to continue the
unlawful practices described above, unless enjoined from doing so by this
Court. . . .

Accordingly, both the Second Claim for Relief, as pleaded, and the Prayer for Relief, ask

that the Court enjoin the four named Director Defendants, and the Board as a whole, from “further

violations of the COML by discussion of public business among three or more members without

notice or an open meeting.” FAC ¶ 29; id. at 11 (Prayer for Relief) (emphasis added):

(1) Enter an Order declaring that the serial gatherings of three or more
members of the DCSD Board of Education to discuss public business was
in violation of the Colorado Open Meetings Law;

(2) Enter an Order preliminarily and permanently enjoining the members

of the DCSD BOE from committing any further similar violations of the
Colorado Open Meetings Law, as they have indicated their intention of
doing.

Not only are the above averments sufficient to state a plausible claim for injunctive relief, as

provide expressly in the COML, the Court has already granted that relief:

The Defendants are enjoined from engaging in discussions of public

business or taking formal action by three or more members of the BOE
either as a group or through a series of meetings by less than three
members at a time, except in public meetings open to the public.

Order Re: Plaintiff’s Motion for a Preliminary Injunction at 6 (Mar. 9, 2022) (italics added).

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 IV. Taken as True, The Facts Averred in the FAC State a Plausible Claim that the
BOE’s Decision to Terminate Superintendent Wise’s Contact Was Made Outside
of a Lawfully Convened Public Meeting and Was Not Thereafter “Cured”

Defendants assert that the Third Claim for Relief – which seeks a Declaration that the

BOE’s decision to terminate Superintendent Wise’s employment contract was made unlawfully

(outside of a public meeting) and is therefore null and void – “fails to state a claim” for relief

because (a) the BOE has the lawful authority to terminate the contract without cause, (b) the

claimed violation of the COML presents a non-justiciable political question, and (c) the relief

requested cannot be issued under the Separation of Powers doctrine. 5 None of these

arguments holds any water.

Of course, under the COML it is completely irrelevant whether the BOE has the legal

right to terminate its contract with Superintendent Wise, with or without cause. The FAC

contains no claim, nor even a suggestion, that the BOE’s decision to terminate the

Superintendent’s employment was a breach of that contract. The only question presented in

this lawsuit was whether the BOE took action it was otherwise authorized to take in a manner

that was unlawful because its decision was made outside of a public meeting.

5
The Motion also claims that the facts averred in the FAC are “sufficient to find a cure” of the
Board’s unlawfully made decision. Mot. at 2, 6 (“more than sufficing to find a cure”). Of course,
such a reading of the factual allegations in the FAC would require the Court to employ the opposite
of the governing rule – that they be taken as true and construed in the light most favorable to the
Plaintiff. The FAC expressly avers that there was no public discussion permitted at the Special
Meeting of February 4, 2022, and that the four named Director Defendants merely “rubber
stamped” or ratified their earlier decision to terminate the Superintendent’s contract without cause.
See also Order re: Plaintiff’s Motion for Preliminary Injunction at 5 (“The evidence indicates that
four members of the board collectively committed, outside of public meetings, to the termination of
Wise’s employment. That decision was then formalized at an official meeting on February 4th.
The fact that no public comment was permitted at the February 4th meeting is additional evidence of
the Individual Defendants’ commitment to their course of action.”) (emphasis added).

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 Defendants next ask this Court to ignore the plain language of the statute, and to

disregard binding precedents applying that law, by declaring that no judge in the state has the

authority to enforce the COML’s plain text. The COML states that “No resolution, rule,

regulation, ordinance, or formal action of a state or local public body shall be valid unless

taken or made at a meeting that meets the requirements of subsection (2) of this section.” § 24-

6-402(8), C.R.S. (emphasis added). Applying that plain text, Colorado’s courts have repeatedly

held that the decisions of other branches of government, including Boards of Education, are not

“valid,” (i.e., they are “null and void”) because they were made “at a meeting” that did not

“meet the requirements of subsection (2)” of the COML. See, e.g., Hanover Sch. Dist. No. 28

v. Barbour, 171 P.3d 223, 228 (Colo. 2007) (declaring as invalid a decision made by a school

board outside of a public meeting to send a letter of non-renewal to a teacher); Walsenburg

Sand & Gravel Co. v. City Council, 160 P.3d 297, 299 (Colo. App. 2007) (allegations in

Complaint that council’s decision was made outside of a public meeting states a valid claim

that decision was invalid); Van Alstyne v. Housing Auth., 985 P.2d 97 (Colo. App. 1999)

(subsequent approval at an open meeting of a decision made earlier at closed meeting was mere

rubber stamp of the initial decision and therefore invalid); Rogers v. Bd. of Trustees for Town of

Fraser, 859 P.2d 284, 286 (Colo. App. 1993) (declaring null and void, under prior statute’s

express language, the termination of a town employee done outside of a public meeting); Sch.

Dist. No. 11 of Cty. of El Paso v. Colo. Springs Teachers Ass’n, 583 P.2d 952, 954 (1978)

(declaring invalid a Master Agreement negotiated and adopted outside of a public meeting);

Littleton Educ. Ass’n v. Arapahoe Cty. Sch. Dist., 553 P.2d 793, 798 (1976) (same).

In short, to give credence to Defendants’ argument that all courts in this State are

precluded by “Separation of Powers” or “Political Question” limitations from enforcing the

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COML’s plain text – either by entering injunctions prohibiting future violations or by declaring

“invalid” decisions made outside of public meetings – would not only render those statutory

provisions nugatory (unenforceable), it would require overturning or disregarding all of the

judicial precedents cited above. This Court lacks the authority to do so. See, e.g., Hardesty v.

Pino, 222 P.3d 336, 340 (Colo. App. 2009) (“Trial courts have no discretion to disregard

binding appellate rulings.”) (citations omitted).

V. The Four Individual Board Directors Were Properly Named as Defendants

Defendants claim that the FAC improperly names four Board Directors (Peterson,

Myers, Williams, and Winegar) as individuals, in their official capacities, when, according to

Defendants, only the Board of Education, comprised of all seven Directors, is the “appropriate”

Defendant. Again, the Defendants are mistaken.

The Douglas County Board of Education acts through a majority vote of its seven

Directors. Thus, any four members of that body can vote to institute litigation, to settle a

claim, or to make any decision on behalf of the Board as a whole. Thus, the consent of four

Directors is needed to “adopt any position” in an executive session, or otherwise outside a

public meeting, in violation of COML. But any three members of the Board – acting without

approval or authorization from a majority of the Board – can still violate the Open Meetings

Law, merely by discussing public business outside of a properly noticed public meeting,

though no Board decision is made. Accordingly, it is appropriate and indeed required, for

Plaintiff to name all four individual Directors who violated the COML as defendants to enjoin

any three of them – not necessarily all four – from continuing to violate the law, as they’ve

declared is their intention.

A concrete example should help illuminate this. Suppose Director Winegar, upon

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reviewing the Court’s preliminary injunction order and the relevant case law, were to conclude

that she will no longer participate in the one-on-one “daisy chain” discussions of Board

business. Four members of the BOE would then be in agreement they would not do so, and

they might even formally vote to approve of the conversion of the preliminary injunction into a

permanent one, as applied to the Board as a whole. But the three “minority” members – for

purposes of this hypothetical, Peterson, Myers and Williams – could, unless

specifically/individually enjoined, proceed (without Board approval) to continue their practice

of gathering two-at-a-time to communicate among the three of them about Board’s public

business, precisely, as they’ve indicated they intend to.

Accordingly, the four individual Board Directors who have previously expressed their

firm belief that they do not violate the COML when they deliberately convene in back-to-back,

one-on-one conversations that share their views amongst them, must each be individually

enjoined from continuing that practice even if it does not command a majority of the Board as a

whole.

CONCLUSION

For the reasons stated above, the Court should deny the Defendants’ Motion to Dismiss,

and take such further action as the Court deems just and proper.

Dated this 22nd day of March, 2022.

Law Office of Steven D. Zansberg, L.L.C.

s/ Steven D. Zansberg
Steven D. Zansberg

COAKLEY, LLC
Eric R. Coakley

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 CERTIFICATE OF SERVICE

I hereby certify that I served this Plaintiff’s Response to Defendants’ Motion to Dismiss upon the
following individuals and entity, via the Colorado Court’s e-filing system, on this 22nd day of
March, 2022:

All counsel of record

s/ Steven D. Zansberg
Steven D. Zansberg

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