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Weise v. Colorado Springs

United States District Court, D. Colorado

April 5, 2018

LESLIE WEISE, Plaintiff,
v.
COLORADO SPRINGS, COLORADO, a municipality, ANDRES PICO, in his official and individual capacity, BILL MURRAY, in his official and individual capacity, AMY TRINIDAD, in her individual capacity, WYNETTA MASSEY, in her official and individual capacity, TOM STRAND, in his official and individual capacity, HELEN COLLINS, in her official and individual capacity, KEITH KING, in his official and individual capacity, JILL GAEBLER, in her official and individual capacity, LARRY BAGLEY, in his official and individual capacity, DON KIGHT, in his official and individual capacity, MERV BENNETT, in his official and individual capacity, Defendants.

          ORDER STAYING DISCOVERY

          Nina Y. Wang Magistrate Judge.

         This action is before the court on Defendants' “Revised Motion for Protective Order to Stay Discovery” (“Motion to Stay”) [#19, filed January 29, 2018]. The Motion to Stay was referred to this Magistrate Judge pursuant to the Order of Reference dated December 18, 2017, [#10], and the memorandum dated January 29, 2018, [#20]. Having reviewed the Motion to Stay and associated briefing, the entire case file, and the applicable law, this court GRANTS the Motion to Stay.

         FACTUAL BACKGROUND

         Plaintiff Leslie Weise initiated this civil action on November 13, 2017, by filing a Complaint asserting claims for defamation and intentional infliction of emotional distress and for violations of her First Amendment rights pursuant to 42 U.S.C. § 1983, arising from a request for records under the Colorado Open Records Act that Plaintiff submitted to the City of Colorado Springs in August 2015, and a subsequent state court proceeding. See [#1]. On January 2, 2018, Plaintiff filed an Amended Complaint asserting a seventh claim for stigma-plus defamation in violation of the Fourteenth Amendment. See [#11]. The relevant allegations are taken from the Amended Complaint and are as follows.

         Plaintiff sought records for:

any air quality studies the Colorado Springs Utilities, an enterprise of Colorado Springs, conducted and/or commissioned from its air quality services vendor AECOM Technical Services, Inc. during an official review by the United States Environmental Protection Agency to determine whether the Colorado Springs region had air quality that was in attainment of the National Ambient Air Quality Standard for sulfur dioxide pollution from emissions by the Martin Drake Power Plant.

[#11 at ¶ 27]. On the basis of attorney client privilege and work product, Defendant Colorado Springs declined to release an air quality study AECOM Technical Services, Inc. had conducted at the request of Colorado Springs Utilities in 2015 (the “Air Quality Study”). [Id. at ¶ 28]. Plaintiff challenged the privileged status of the Air Quality Study in El Paso County District Court, which ultimately entered judgment for Colorado Springs. [Id. at ¶ 29]. Plaintiff appealed the ruling “based on what she believed were errors in fact and law, including factual misrepresentations made by Colorado Springs to the District Court.” [Id. at ¶ 30].

         Upon Plaintiff's filing of the appeal, the clerk's office mailed each of the parties a compilation of electronic files containing the record. The clerk's office inadvertently included in the compilation the privileged Air Quality Study. [Id. at ¶¶ 32, 33]. Plaintiff read the Air Quality Study as part of her review of the record, and thereafter filed several motions with the court of appeals seeking both guidance and “immediate publication of the information contained in the Air Quality Study.” [Id. at ¶¶ 33, 36].

         On November 16, 2016, the court of appeals issued an order acknowledging the inadvertent disclosure of the Air Quality Study, directing the parties to return the electronic files they had received, and ordering Plaintiff not to “distribute the sealed material nor download, retain, or disseminate the record.” [Id. at ¶ 37]. Plaintiff alleges, “[i]mportantly, the Colorado Court of Appeals did not order that [she] could not discuss the sealed material, ” and further alleges that the court of appeals “confirmed that [she] was not legally barred” from either “sharing her publicly filed motions or speaking about the contents of the documents that had been inadvertently disclosed to her.” [Id. at ¶ 38]. Plaintiff then shared with a reporter for the Colorado Springs Gazette the first two motions she had filed with the court of appeals. In the motions, Plaintiff stated that: “(1) records affecting public health and safety ‘have been improperly withheld' though people near the Martin Drake Power Plant might be exposed to dangerous levels of sulfur dioxide, ” and mentioned that her son attends grade school at a location within the Martin Drake Power Plant emissions plume; that “(2) Colorado Springs Utilities ‘has consistently declared to the public and regulatory authorities that it is in compliance with those (SO2) regulations and standards' though it had a duty to report its findings of violations to the Environmental Protection Agency, and a public safety fiduciary duty to report those findings to the public”; and “(3) withholding the report by citing attorney-client privilege was ‘an egregious abuse of the CORA (Colorado Open Records Act) laws.'” [Id. at ¶ 39]. Plaintiff also provided comment to the reporter. [Id.]

         On November 21, 2016, the Colorado Springs Gazette published an article using Plaintiff's observations regarding the Air Quality Study. Specifically, the article quoted Plaintiff's motions, accessible to the public, and stated that the “sulfur-dioxide emissions from the coal-fired Martin Drake Power Plant violated federal standards contrary to filings by Colorado Springs Utilities, ” and attributed this conclusion to Plaintiff. [#11 at ¶ 40]. Plaintiff asserts the article did not quote the Air Quality Study, and rather acknowledged that she had returned the Air Quality Study to the court of appeals as ordered. [Id.] The article quoted Defendant Amy Trinidad, the spokeswoman for Colorado Springs Utilities, disputing Plaintiff's characterization of the Air Quality Study and implying that Plaintiff had “fabricat[ed] her account of the data.” [Id.]

         The day after the article was published, Colorado Springs filed a “Cross Motion for Order to Show Cause” as to why Plaintiff should not be held in contempt of court (“cross motion”), and asked the court of appeals to impose punitive sanctions, such as jail time, attorney fees, and fines, against Plaintiff as a result of her discussing the Air Quality Study with the Colorado Springs Gazette reporter and others. [#11 at ¶ 42]. Plaintiff asserts that Colorado Springs filed the cross motion “explicitly in retaliation for Ms. Weise's First Amendment-protected speech regarding the Air Quality Study and with the purpose of chilling Ms. Weise from speaking further regarding the Air Quality Study, ” and that, “[d]ue to her fear of prosecution by Colorado Springs, Ms. Weise has not discussed any of the specific contents of the Air Quality Study included in the sealed file subsequent to Colorado Springs filing its [motion], ” and rather “has only repeated the generalizations of the Air Quality Study that she had previously made prior to the filing of the [motion] (which were already in the public record and which Ms. Weise had confirmed complied with the Colorado Court of Appeals' November 16, 2017 and November 17, 2017 orders).” [Id. at ¶¶ 43, 44]. On February 8, 2017, the cross motion was dismissed with prejudice. [Id. at ¶ 46].

         Plaintiff alleges that along with filing the cross motion, multiple Colorado Springs officials negligently, or intentionally, made numerous false and defamatory statements about her and her comments regarding the Air Quality Study to members of the public, “including statements made to the Colorado Springs Gazette, to concerned citizens, and during public meetings.” [#11 at ¶ 48]. She further alleges that the statements “were part of a campaign by Colorado Springs officials to publicly discredit [her], and vilify her within the Colorado Springs community, in the hopes that the alarming results of the Air Quality Study Colorado Springs Utilities had commissioned using public funds could be swept under the rug.” [Id.] For support, Plaintiff describes specific instances in which Defendants Andres Pico, a member of the Colorado Springs City Council and former Colorado Springs Utilities Board Chair, Bill Murray, a member of the Colorado Springs City Council and Colorado Springs Utilities Board Member, and Defendant Trinidad told members of the public that Plaintiff acted illegally and lied about the implications of the Air Quality Study. See [id. at ¶¶ 49-60].

         Plaintiff represents that she holds a license to practice law in California and is in good standing with that bar, that she holds an inactive license to practice in New York, and that she holds a license in retired status in Pennsylvania. [#11 at ¶ 64]. In March 2017, the Colorado Springs City Council voted in a closed session to file formal complaints in these states that Plaintiff “had violated one or more court orders, was not prompt in informing the court, and that [Plaintiff] had unlawfully disclosed government records, ” all of which are charges Plaintiff disputes. [Id. at ¶¶ 65, 66]. Defendants Tom Strand, Bill Murray, Helen Collins, Keith King, Jill Gaebler, Andres Pico, Larry Bagley, Don Knight, and Merv Bennett comprised the Colorado Springs City Council at the time it voted to file complaints against Plaintiff. [Id. at ¶ 65]. Plaintiff alleges the Colorado Springs City Council decided to file the complaints against her as retaliation for “her speech regarding the Martin Drake Power Plant to the Colorado Springs Gazette and others.” [Id.] The following month, Defendant Wynetta Massey, the city attorney for Colorado Springs, authored and filed the formal actions in California, New York, and Pennsylvania. [Id. at ¶ 66]. Plaintiff alleges that the accusations regarding professional misconduct and illegal conduct stated in the formal actions are false and constitute defamation per se. [Id. at ¶ 69].

         In sum, Plaintiff asserts that with respect to the events described herein, she “acted lawfully and…[t]he statements she made were truthful and did not violate the law, or the rules of professional conduct in any state, in any way.” [#11 at ¶ 81]. She alleges, as a result of Defendants' actions, she has lost stature in her community, has been required to defend herself against the formal complaints Colorado Springs filed against her in the states in which she is ...


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