DISTRICT COURT, DOUGLAS COUNTY,

COLORADO
4000 Justice Way
Castle Rock, CO 80109

ROBERT C. MARSHALL,
Plaintiff,

v.

DOUGLAS COUNTY BOARD OF EDUCATION;

MICHAEL PETERSON, REBECCA MYERS,
KAYLEE WINEGAR and CHRISTY WILLIAMS, in ▲ COURT USE ONLY ▲
their official capacities as members thereof,
Defendants.
Attorneys for Defendants: Case Number: 2022CV30071
Geoffrey N. Blue (32684), gblue@gesslerblue.com
Scott E. Gessler (28944), sgessler@gesslerblue.com Division:
Gessler Blue LLC
7350 E. Progress Place, Suite 100
Greenwood Village, CO 80111
Tel. (303) 906-1050 or (720) 839-6637

Motion to Reconsider or to Clarify Order Re: Plaintiff’s

Motion for a Preliminary Injunction

Conferral: The undersigned counsel has conferred with Plaintiff’s counsel

regarding this motion. Plaintiff opposes the relief sought.

Introduction

Entering a preliminary injunction is “an extraordinary remedy designed to protect a

plaintiff from irreparable injury and preserve the court’s power to render a meaningful

decision following a trial on the merits.” 1 The Court’s Order Re: Plaintiff’s Motion for a

1 PI Order at 2 (citing Rathke v. MacFarlane, 648 P.2d 648, 651 (Colo. 1982)).
Preliminary Injunction entered here (“PI Order”) does not meet this standard – a preliminary

injunction is not necessary, and it does not resolve the parties’ dispute. Even if the Court

believes that Plaintiff is likely to succeed on the merits, the PI Order does not preserve

Plaintiff’s claims, because nothing could happen to prevent this Court from entering a

“meaningful decision following a trial on the merits.” And Plaintiff has failed to allege any

such possibility. Further, the PI Order 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.

The PI Order also goes far beyond remedying the conduct complained of here. The

conduct Plaintiff complains of, and that the Court relied on, is its view that that “a series of

private meetings took place between various combinations of the Individual Defendants and

that they reached and communicated agreement regarding Wise’s termination.” 2 For

purposes of this Motion, the Defendants do not currently challenge this Court’s decision

with respect to the conversations concerning Wise. They do, however, challenge the

sweeping breadth of the PI Order. The PI Order prohibits any discussion of public business in

serial conversations, seemingly forever, including conversations wholly unconnected to

Wise’s termination and that do not seek to reach agreement on issues that require formal

action. That relief goes far beyond the harm Plaintiff complains of. At a minimum, if the

2 PI Order at 5.
2
Court does not reconsider its entry of a preliminary injunction, it should clarify what

conduct is specifically prohibited by the PI Order, because the PI Order heavily regulates

Board Directors’ ongoing ability to discuss public policy matters with one another and does

not clearly describe what conduct is prohibited.

Summary of the Argument

The Court’s PI Order is wrong on the law in multiple respects and must be

reconsidered. The Colorado Rules of Civil Procedure allow that an order may be

reconsidered when the Court has made “a manifest error of fact or law that clearly mandates

a different result or other circumstance resulting in manifest injustice.” 3 Here, the Court

erred in 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.

For these reasons, the Court should reconsider the PI Order. At a minimum, it should clarify

the terms of the PI Order.

Argument

I. The law does not support the entry of a preliminary injunction.

3 C.R.C.P. 121, § 1-15(11).

3
 The Court made its decision to enter the PI Order based on its review of the caselaw

from several other states, primarily Hawaii. However, the Court reached the wrong

conclusion, and the PI Order significantly modifies the plain language of the COML.

Whether to enter a preliminary injunction is premised on the factors set forth in

Rathke: 4 (1) a reasonable probability of success on the merits; (2) a danger of real,

immediate, and irreparable injury which may be prevented by injunctive relief; (3) no plain,

speedy, and adequate remedy at law; (4) granting the preliminary injunction will not disserve

the public interest; (5) the balance of equities favors the entry of the preliminary injunction;

and (6) the injunction will preserve the status quo pending trial on the merits. 5 Importantly,

and as this Court noted in the PI Order, entering a preliminary injunction is “an extraordinary

remedy designed to protect a plaintiff from irreparable injury and preserve the court’s power

to render a meaningful decision following a trial on the merits.” 6 The focus in such a case is

on the matter at hand, not a possible future harm that has no association with the current

lawsuit. That possible future harm is not a proper subject for a preliminary injunction, but

rather is subject to relief under a permanent injunction. 7

A. Plaintiff has not shown a likelihood of success on the merits.

Plaintiff has not shown that the actions taken by the Board member defendants

violated the COML. In fact, the plain language of the statute shows that they conducted

4 Rathke, 648 P.2d at 651.

5 Id. at 653-54.
6 PI Order at 2 (citing Rathke, 648 P.2d at 651).
7 See, e.g., Colo. Springs v. Blanche, 761 P.2d 212, 217-18 (Colo. 1988) (discussing

preliminary injunctions and permanent injunctions).

4
their business appropriately, and the cases relied upon by the Court are distinguishable.

1) The COML plain language does not support the preliminary injunction.

The COML is explicit in how it treats state entities and local entities differently.

Members of State boards may not discuss any public business between themselves at all

except in a properly noticed meeting. 8 Members of local boards, such as the Douglas

County School Board, may discuss public business between two members of the board

without noticing the conversation as a public meeting. 9 In other words, the General

Assembly specifically decided to allow members of local public bodies to discuss public

business in one-on-one conversations. Importantly, the COML imposes no restrictions on

those discussions other than preventing the members from “taking public action.” Rather, it

defines a meeting as between three or more members. In fact, the COML does not prohibit

members from discussing upcoming votes or discussing their positions on issues pending

before the local board. It merely says that if three or more of them meet, then that meeting

constitutes an open meeting and requires public notice. Importantly, Plaintiff does not

dispute that the only formal action taken by the Directors was in the properly noticed and

properly held meeting on February 4, 2022, when the entire board formally voted on

terminating Wise’s contract.

The PI Order, however, puts judge-determined restrictions on one-one-one

conversations between Directors. It states that the members of a local public body, i.e., the

8 C.R.S. § 24-6-402(2)(a).
9 C.R.S. § 24-6-402(2)(b).
5
Douglas County School Board (the “Board”), may not discuss any public business in a series

of conversations between two members of the Board:

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. 10

Ostensibly, this means that if Board Director One discusses an issue such as the

adoption of a new curriculum by the Board with Board Director Two, he cannot then have a

similar conversation with Board Director Three. 11 Nowhere in the COML has the General

Assembly prohibited such conversations. But the PI Order prevents a board member from

doing what the COML expressly permits: discuss public issues individually with other Board

members, without those conversations constituting public meetings. Indeed, the COML

expressly allows two members of a local public body to discuss public business without

noticing a public meeting, it does not restrict the topics that can be discussed in those

conversations, and it does not restrict whether or what the participants in those

conversations can discuss the same subjects with other board members.

2) The Court’s reliance on Hawaii law is misplaced.

The Court in the PI Order relies on the case Right to Know Committee v. City Council, City

and County of Honolulu, 175 P.3d 111 (Haw. App. 2007), for its reasoning that separate,

complying conversations between two board members at a time that discuss the same issues

10 PI Order at 6.
11 Id.
6
violates the COML. But Hawaii law differs greatly from Colorado law, and the Court failed

to consider these differences, instead calling the law “similar to that of Hawaii.”

First, the Hawaii statute includes specific provisions not included in the COML. For

instance, the Hawaiian statute carefully defines what are permitted interactions of the

members, unlike the COML. 12 And the Hawaiian law specifically states that during

conversations between two board members “no commitment to vote [may be] made or

sought.” 13 Here, the COML contains no such language.

Second, in addressing the fact that the Hawaiian Sunshine Law does not prevent

serial one-on-one meetings, the Hawaiian court noted that the statute provides a section

entitled “Exceptions” in which the statute prohibits board members from using “chance

meeting[s], permitted interaction[s], or electronic communications… to circumvent the spirit

or requirements of the law.” 14 Relying on this specific provision of Hawaiian law, the

Hawaiian court held that conduct that violated the “spirit of the law,” as the court saw it,

was specifically prohibited. By contrast, the COML explicitly considers chance meetings, and

states that the COML “does not apply to any chance meeting or social gathering at which

discussion of public business is not the central purpose”. 15 Thus, both Hawaii and Colorado

law consider “chance meetings” but the two states treat them much differently.

12 H.R.S. § 92-2.5.
13 H.R.S. § 92-2.5(a).
14 Right to Know, 175 P.3d at 121 (citing HRS § 92-5(b)).
15 C.R.S. § 24-6-402.

7
 The Hawaiian court decision, in other words, when read in the context of the

underlying statute, does not actually support the Court’s entry of a preliminary injunction.

3) The preliminary injunction significantly modifies the COML.

Courts are not supposed to modify statutes with additional language that the General

Assembly could have included. 16 In this instance, the General Assembly made a clear

distinction between state boards and local board; for state boards (but not local boards) a

discussion between two board members is a public meeting. 17 On the other hand, it

expressly chose to allow members of local boards to discuss public business in groups of

two, without that discussion being regulated by the COML. 18 And the COML does not

prohibit members of a local board from discussing how they plan to vote on a particular

resolution or other action item – it merely prohibits them from taking “formal action” on a

matter outside of a properly noticed public meeting. 19 The PI Order impermissibly adds

language to the COML that limits the number of one-on-one conversations that a board

member may participate in on a given subject, by only allowing a board member to have one

– and only one – conversation with a fellow board member about a public matter. 20

16 People v. Diaz, 2015 CO 28, ¶ 12.

17 C.R.S. § 24-6-402(2)(a).
18 C.R.S. § 24-6-402(2)(b).
19 Id.
20 Diaz, 2015 CO 28, ¶ 12 (“We do not add words to the statute or subtract words

from it”).
8
 B. Plaintiff failed to show a danger of real, immediate, and irreparable injury which
could be prevented by injunctive relief.

The Court did not make any findings on this element – it merely assumed that there

was a threat of future harm to Plaintiff. It based this assumption on the fact that the Court

determined that there was a reasonable probability of success on the merits. But this factor is

separate and apart from a reasonable probability of success. Otherwise, the Court essentially

eliminates the real and immediate harm as a superfluous factor. The Court must make

specific findings regarding real and immediate harm. 21 It did not do so.

Further, the question in the preliminary injunction analysis is not whether the Board

improperly terminated Wise’s contract (an event which occurred in the past), but rather

whether the Board threatened to conduct its future business in such a way as to violate the

COML. Plaintiff bears the burden of proof to show a threatened future harm, 22 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

21 See Bill Barrett Corp. v. Lembke, 2018 COA 134, ¶ 90 (remanding for the trial court to
make findings on the factors at issue).
22 Rathke, 648 P.2d at 653.

9
absurd result. 23 And a failure to show real and immediate future harm is dispositive. Without

evidence of future harm, the Court does not have a basis for issuing a preliminary injunction.

In fact, Defendants provided uncontroverted and undisputed evidence that the Board

would not violate the COML in the future. 24 President Peterson testified that he would not

conduct one-on-one conversations in this manner going forward and that he would do much

more of these communications with individual Directors through email to have a record of

it. 25 Plaintiff provided nothing in rebuttal. Accordingly, without any evidence to the contrary,

this Court cannot find a danger of real and immediate harm, and thus there is no proper

basis for a preliminary injunction.

C. A preliminary injunction is not needed to preserve the status quo.

Here, the Court assumed the status quo is preserved with a preliminary injunction, 26

but it made no findings about how the status quo would be preserved. And indeed, Plaintiff

did not meet his burden to establish that entry of a preliminary injunction would maintain

the status quo and made no argument to the Court about how entry of a preliminary

injunction would preserve the status quo. Instead, Plaintiff merely challenged Defendants’

23 People v. Cardenas, 2015 COA 94M, ¶ 13 (procedural rules must be construed in usch
a way as to avoid absurd results); see Rags Over the Ark. River, Inc. v. Colo. Parks & Wildlife Bd.,
2015 COA 11M, ¶ 83 (Dailey, J., concurring).
24 Defendants do not concede they violated the COML or that Plaintiff proved they

violated the COML.

25 Transcript of Hearing, Feb. 25, 2022 (“Transcript” herein), 86:5-15.
26 PI Order at 6.

10
arguments that the status quo would be the prior practice under the Defendants’ previous

understanding of the law. 27

This factor argues strongly against a preliminary injunction because the Board

formally fired former-Superintendent Wise, and no preliminary injunction could change past

actions. In other words, there is no status quo to preserve. By its terms, the Amended

Complaint seeks to alter the status quo, by seeking injunctive relief that regulates all of the

Board’s future interactions. And, again, Plaintiff failed to explain the status quo that needs to

be preserved, which he must do to meet this factor, since he bears the burden of proof. 28

D. The preliminary injunction was improvidently granted.

The Court got the law wrong regarding the COML. The law specifically addresses

Defendants’ actions, and it does not prevent them—in fact it specifically permits two

members of a local board to meet to discuss public business. 29 Further, Plaintiff failed to

satisfy his burden of proving the Rathke factors, all of which Plaintiff must prove before a

Court can enter a preliminary injunction: “If each criterion cannot be met, injunctive relief is

not available.” 30 Plaintiff failed to carry his burden of proof on all the Rathke factors, and

therefore a preliminary injunction should not have been entered.

27 Transcript, 131:13-132:21.
28 To say nothing of Plaintiff not satisfying his “heightened” burden of proof given
he sought a disfavored injunction. SCFC ILC, Inc. v. VISA USA, Inc., 936 F.2d 1096, 1098-
99 (10th Cir. 1991); Kaiser v. Market Square Discount Liquors, Inc., 992 P.2d 636, 643 (Colo.
App. 1999) (federal authorities interpreting Fed. R. Civ. P. 65 are instructive).
29 C.R.S. § 24-6-402(2)(b).
30 Rathke, 648 P.2d at 654.

11
II. In the alternative, the preliminary injunction must be clarified and narrowed.

If the Court nonetheless again determines that all Rathke factors were met, the PI

Order must nonetheless be clarified and narrowed. At the end of the hearing regarding this

preliminary injunction, the Court asked Defendants’ counsel how they believed the

preliminary injunction should be written. The undersigned was not counsel to Defendants at

that time nor did they participate in the hearing as they were hired later. We now answer

that question.

Any injunction must be clear enough to allow the individuals bound by the injunction

to know exactly how they must act in order to comply with the injunction. 31 As the

Colorado Supreme Court has stated, “an injunction prohibiting conduct must be sufficiently

precise to enable the party subject to the equitable decree to conform its conduct to the

requirements thereof.” 32 Stated differently, the Colorado Supreme Court prohibits orders

granting preliminary injunctions from being either overbroad, or vague, or both.

As written, the PI Order is overbroad—it appears to prevent Board Directors from

speaking on the same subject with more than one other Director in a series of conversations:

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. 33

31 Colo. Springs Bd. of Realtors, Inc. v. State, 780 P.2d 494, 499 (Colo. 1989).
32 Id.
33 PI Order at 6.

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Indeed, the PI Order could be interpreted to prevent one Director from having one-on-one

conversations to discuss public business with more than one other Director in perpetuity. This

PI Order is not “sufficiently precise” to enable the Board to conform its conduct to it.

For instance, does the PI Order mean that one Director may speak on any public

business with only one other Director? For instance, may a Director only speak to one other

Director about public business, and then never speak with any other Director in a one-on-

one setting? Or is the rule limited to a specific subject, so that a Director may only speak to

one other Director about a particular item of public business, and then never speak with any

other Director about that item in a one-on-one setting? And even then, it is difficult to

define what a “particular item” is. For example, if two Directors discuss curriculum in

general, are each of them then prohibited from discussing math curriculum with a third

Director, because it is a subset of “curriculum”? Public policy subjects do not fit into neat

categories, and the Court’s PI Order – read literally – would paralyze the Directors from

having any one-on-one discussions with more than one other Director, for fear of running

afoul of the vague provisions of the PI Order.

Importantly, the PI Order does not square with the COML’s explicit permission for

any two Board Directors to discuss public business as it essentially makes it impossible for

Directors to meet one-on-one to discuss public business with a Director, having earlier met

one-on-one with a first Director without being at risk of violating the PI Order.34

34 C.R.S. § 24-6-402(2)(b).
13
 As the Colorado Supreme Court stated in Colorado Springs Board of Realtors, the order

must be precise enough to allow the Board of Education to conform its actions to the

order. 35 This, the PI Order does not do.

Finally, it appears the Court’s concern entering this Order was “that a series of private

meetings took place between various combinations of the Individual Defendants and that

they reached and communicated agreement regarding Wise’s termination.” 36 In order to

address these issues, any preliminary injunction should be narrowly tailored to address this

issue and should not be as broad as the Court has stated. Accordingly, Defendants

respectfully offer the following rewritten preliminary injunction:

Defendants are enjoined from conducting a series of one-on-one meetings in

which they reach and communicate an agreement about an issue on which the
Board of Education will vote and take formal action at a properly noticed
public meeting.

This injunction is narrowly tailored in two important ways in which the PI Order is not. First,

it addresses the concern the Court expressed, yet still gives the Directors clear guidance

about how they must act to comply with its provisions. And second, it ensures that it is not

so broad as to encompass every single issue that the Board will ever encounter regardless of

whether the Board will vote on it. In other words, it aligns with the COML, it is narrowly

35Colo. Springs Bd. of Realtors, Inc. v. State, 780 P.2d at 499.

36PI Order at 5. Importantly, there is no dispute that the formal action to terminate
former-Superintendent Wise occurred at the February 4, 2022, Special Meeting, which was
properly noticed.
14
tailored to the issues in this case, and it is sufficiently precise to allow the Board “to conform

its conduct to the requirements thereof.” 37

FOR THESE REASONS, the Court should reconsider its order entering a

preliminary injunction, reverse that decision and deny the motion seeking a preliminary

injunction. Or, in the alternative, it should clarify the preliminary injunction by revising it

and entering the following preliminary injunction:

Defendants are enjoined from conducting a series of one-on-one meetings in

which they reach and communicate an agreement about an issue on which the
Board of Education will vote and take formal action at a properly noticed
public meeting.

And, the Court should grant Defendants all such further relief as is just, proper, or

appropriate.

Respectfully submitted this 25th day of April 2022,

GESSLER BLUE LLC

s/ Geoffrey N. Blue
Geoffrey N. Blue

Certificate of Service

I certify that on this 25th day of April 2022, the foregoing was electronically served
via e-mail or CCES on all parties and their counsel of record.

By: s/ Joanna Bila

Joanna Bila, Paralegal

37 Colo. Springs Bd. of Realtors, Inc. v. State, 780 P.2d at 499.

15