DISTRICT COURT, DOUGLAS COUNTY,

COLORADO
Douglas County Justice Center
4000 Justice Way
Castle Rock, CO 80109
(720) 437-6200
COURT USE ONLY

ROBERT C. MARSHALL, Case No.: 2022-cv-_______

Plaintiff

v. Division:
IOANA MARIN, in her official capacity as the Public
Records Manager for the Douglas County School District,
Defendant

Attorney for Plaintiff:

Steven D. Zansberg, #26634
Law Office of Steven D. Zansberg, LLC 100
Fillmore Street, Suite 500
Denver, CO 80206
steve@zansberglaw.com

COMPLAINT AND APPLICATION FOR AN ORDER TO SHOW CAUSE

PURSUANT TO § 24-72-204(5), C.R.S.

Plaintiff Robert C. Marshall, by and through his undersigned counsel, for their
Complaint and Application for Order to Show Cause, hereby states as follows:

INTRODUCTION

This is a civil action under the Colorado Open Records Act (“CORA”). The
Plaintiff, Robert C. Marshall (“Marshall”) is an Applicant seeking an Order to Show
Cause directed to the custodian of public records for the Douglas County School
District (“DCSD”) to appear and to show cause why public records that the Applicant
has requested to inspect should not be made available for inspection.

The public records in question are a set of documents that were contained in
one or more loose leaf binders that were distributed to four newly elected members of
the DCSD Board of Directors (“BoE”). These four members ran for the school board
as one combined slate, self-describing themselves as a conservative alternative to the
previous board and naming their slate, “Kids First.” After being elected, but prior to
being sworn into office, these four Directors all attended a private training retreat
convened in Estes Park, Colorado in November, 2021 (and upon information and
belief, it was the immediate weekend after the election). At this retreat, they were
provided orientation and guidance on how they should conduct their official public
business in accordance with, for example, Robert’s Rules of Order, Colorado’s Open
Meetings Law and Colorado’s Open Records Act.

Additionally at the retreat, attorney Will Trachman, whom the four new
Directors hired immediately upon being sworn into office as an attorney for the BoE,
attended the retreat to provide training to the Directors. And Erin Kane, then public
employee as the head of the DCSD charter school “American Academy” attended the
retreat and stayed overnight, giving a presentation on school financing. The four
Directors have retained (“maintained”) those binders used for the initial training of
their public duties as training documents and reference after they took office. None
of the new Directors have attended any other legal training sessions, such as the
seminars for incoming directors provided by the Colorado Association of School
Boards (CASB). As such, the writings at issue have been “maintained or kept” by
these public officials “for use in the exercise of” their official functions. They are,
therefore, “public records.”

JURISDICTION AND PARTIES

1. This Court has jurisdiction over the claims herein under §§ 24-72-
204(5) and - 204(5.5) of CORA, § 24-72-201, et seq., C.R.S (2022). On information
and belief, the public record that is the focus of this action can be found in this
judicial district.

2. Plaintiff Marshall is a “person” as defined by § 24-72-202(3), C.R.S.

3. Defendant Iona Marin is the Public Records Manager for DCSD and
is a custodian of the public record that is the subject of the Plaintiffs’ CORA
request.

4. Venue for this civil action is proper in this District under Rules
98(b)(2) and (c)(1) of the Colorado Rules of Civil Procedure and under § 24-72-
204(5), C.R.S.

APPLICABLE LAW
5. Under the CORA, any person may request to inspect and/or obtain a
copy of a public record. See § 24-72-203(1)(a), C.R.S. CORA guarantees access to records of
public business so that “the workings of government are not unduly shielded from the public
eye.” Int’l Bhd. of Elec. Workers Local Union 68 v. Denver Metro. Major League Baseball
Stadium Dist., 880 P.2d 160, 165 (Colo. App. 1994).

-2-
 6. A public record is any “writing” that is “made, maintained or kept by . . . any
. . . political subdivision of the state . . . for use in the exercise of functions required
or authorized by law or administrative rule ” See § 24-72-202(6)(a)(I), C.R.S.
(emphasis
added).

7. Under the CORA, a custodian is required to provide access to a public

record unless “[s]uch inspection would be contrary to any state statute” or is otherwise
exempted from disclosure by one of the narrow exemptions in Section 204(3)(a) of the
CORA. See § 24-72-204(1)(a), C.R.S.

8. Any person whose request for access to a public record is denied may
apply to the District Court, in the District in which such record can be found, for an
“Order to Show Cause” directing the custodian of the public record to show cause why
the record should not be made available for public inspection. See § 24-72-204(5),
C.R.S. Prior to filing such suit, the applicant must provide the records custodian with advance
written notice (either fourteen days or three days, if the need for speedy resolution is justified
through a factual recitation) in order to be eligible to recover attorneys’ fees. Id.

9. Under the CORA, upon the filing of such an Application, the Court must
schedule the hearing on an Order to Show Cause at the “earliest time practical.” See id.

10. In a CORA show cause proceeding, once the requester establishes a

prima facie basis for concluding that the requested record is a “public record,” the
burden shifts to the custodian of the record to demonstrate why the refusal to provide
access to the requested record is not “improper.” See Denver Publ’g Co. v. Bd. of Cty.
Comm’rs, 121 P.3d 190, 199 (Colo. 2005).

11. Under the CORA, following a Show Cause Hearing, if the Court finds
that the requested public record and/or recordings should be made available for public
inspection, it shall order that those records be made available for public inspection;
moreover, in such circumstances, the Court must award the applicant his or her
reasonable attorneys’ fees in connection with the effort to obtain access to the public
record. See Denver Publ’g Co., 121 P.3d at 199.

THE WRITINGS IN QUESTION

12. On November 2, 2021, Mike Peterson, Becky Myers, Kaylee Winegar

and Christine Williams were elected to the BoE. Their terms of office were to begin on
November 30, 2021.

13. On or about November 5-7, 2021, Peterson, Myers, Winegar, and

Williams met together at a pre-installation “retreat” in Estes Park. During that two-day

-3-
meeting, the four newly-elected Directors were joined by then public employee/official
(and now DCSD Superintendent) Erin Kane, who stayed overnight at the retreat after
providing a school financing presentation. Also present at the retreat was an attorney,
Will Trachman. Upon information and belief, Trachman provided each of the four
newly elected Directors with training from a set of documents in looseleaf binders (“The
Training Binders”) that explained how meetings are to be conducted under Roberts
Rules, how meetings of the BoE were to comply with Colorado’s Open Meetings Law
(“COML”) and how the BoE was to comply with Colorado’s Open Records Act
(“CORA”), among presumably other undisclosed topics.

14. Newly-elected Directors Winegar and Williams both posted a photograph

on their Facebook pages depicting the retreat meeting of the four newly-elected
Directors, which showed The Training Binders:

-4-
 15. The Training Binders are seen in front of all four newly-elected Directors as they listened
to what they were being told at the time of the training.

16. In response to questions she received about the training the newly-elected Directors
had received as “the work has just started,” Director Williams explained that the newly elected
Directors were up in Estes Park “listening to an attorney that we asked to come speak with us,” had
“learned all about . . . the Sunshine Laws . . . The binder has all of that information.”:

-5-
 17. At one or more public meeting of the BoE following the start of their official
terms as Directors, one or more of the four newly elected Directors referred to the training they
received from The Training Binders as the basis for his or her understanding of their obligations
to comply with the Colorado Open Meetings Law and perform their other public duties. See,
e.g., March 22, 2021 BoE Meeting [Director Myers at 6:30:30-6:31:00 (“The weekend of the
retreat was a training session and there were numerous people there training us [on our public
duties].”) available at https://www.youtube.com/watch?v=MvnAcsRtfEs .

18. In public comments at that same BoE meeting, one or more members of the
DCSD community voiced concerns and questions about the content of the training materials that
the four newly-elected Directors had received at the retreat, which apparently served as the basis
for those directors’ subsequent serial one-on-one discussions of Superintendent Wise’s contract,
which this Court has already found to have violated the COML. See, e.g., Public Comment of
Carolyn Williamson at 3:41:50:

I would like to comment on the collusion that was going

on with Erin Kane, even to point that right after you guys
were elected, this picture [holds up photo], which was
posted on your “Kids First” page, shows that you had a
retreat in Estes Park, and we have a lot of questions. Erin
Kane, by her own admission, was also there. And [Will]
Trachman, reportedly, also attended. So some of the
questions we have [are], What is in your binders? Who
produced the binder content? What BoE business was
discussed in this clandestine retreat? . . .

available at https://www.youtube.com/watch?v=MvnAcsRtfEs.

19. At an earlier public meeting of the BoE, on February 4, 2022, three Directors
expressed their opinions that the four newly-elected directors had violated the COML by having
conducted a series of one-on-one gatheringss in which they collectively discussed, and decided
to terminate, the contract of Superintendent Corey Wise. At that BoE public meeting, both
Directors Peterson and Williams stated that they believed they had not violated the COML.
These statements appear to have been based on their having reviewed the writing were contained
in The Training Binders. Director Williams stated “I followed the law to the letter. Because we
are a local board, sunshine laws are that two of can be together at any time without calling a
public meeting. At no time was I with more than one other director at any given moment; my
phone calls were on between myself and one other at a time.”

PLAINTIFF’S REQUEST AND DEFENDANT’S DENIAL

20. On March 28, 2022, Ms. Marin acknowledged receipt of Marshall's

request to inspect and copy The Training Binders. See Exhibit 1.

21. On March 31, 2022, Defendant Marin denied Marshall’s CORA request,
asserting that The Training Binders are not public records. See Exhibit 2.

-6-
 22. On May 9, 2022, undersigned counsel provided written notice to CDHS
of the Plaintiffs’ intent to file this Application for an Order to Show Cause pursuant to §
24-72-204(5), C.R.S. See Exhibit 3.

23. On May 23, 2022, DCSD notified Marshall that it would not make
available to him The Training Binders, asserting, again, that they were not public
records. See Exhibit 4.

FIRST CLAIM FOR RELIEF

(Application for Order to Show Cause)

24. Plaintiff incorporates by reference all of the allegations and statements in

the foregoing Paragraphs.

25. Pursuant to § 24-72-204(5), C.R.S., the Plaintiff is entitled to – and

hereby formally apply for – the entry of an Order to Show Cause, directing that the
Defendant to appear and show cause why the public records that was sought by the
Plaintiff under the CORA should not be disclosed to them.

26. As required by the CORA, the Court should set the date of the show
cause hearing at “the earliest time practical.”

27. Upon completion of the hearing on the Order to Show Cause, the Court
should enter and order directing the Defendant to provide the Plaintiff with the public
records they requested to inspect.

28. The proposed Order to Show Cause is attached hereto.

PRAYER FOR RELIEF

WHEREFORE, pursuant to § 24-72-204(5), C.R.S., Plaintiff prays that:

A. The Court enter an Order directing the Defendant to show cause why
DCSD should not permit inspection and copying of the requested
Public Records as described in this Complaint and Application for
Order to Show Cause;

B. The Court conduct a hearing pursuant to such Order “at the

earliest practical time” at which the Court may make the Order
to Show Cause absolute;

C. At the conclusion of the hearing on the Order to Show Cause, the

-7-
 Court enter an order directing the Defendant to disclose the public
records at issue to Plaintiff;
D. At the conclusion of the hearing on the Order to Show Cause, the
Court enter an order directing the Defendant to pay Plaintiff his
reasonable attorneys’ fees and costs, pursuant to § 24-72-204(5),
C.R.S.;
E. Enter such further and additional relief as the Court deems just and proper.

Dated: June 14, 2022

By /s/ Steven D. Zansberg

Steven D. Zansberg
LAW OFFICE OF STEVEN D. ZANSBERG, LLC
Attorneys for Plaintiff

Plaintiff’s Address:
2 Jack Rabbit Place
Highlands Ranch, CO 80126

-8-