Attorneys for Petitioner The Colorado Independent: Ballard
Spahr LLP Thomas B. Kelley Steven D. Zansberg Gregory P.
Szewczyk Denver, Colorado
Attorneys for Respondent The District Court for the
Eighteenth Judicial District of Colorado: Cynthia H. Coffman,
Attorney General Matthew D. Grove, Assistant Solicitor
General Denver, Colorado
appearance on behalf of Plaintiff or Defendant.
We accepted jurisdiction in this original proceeding to
consider The Colorado Independent's contention that the
Arapahoe County District Court erred in refusing to grant
public access to certain records maintained under seal in a
capital murder case. The Colorado Independent contends that
the federal and state constitutions grant a presumptive right
of access to documents filed in criminal cases. While
presumptive access to judicial proceedings is a
right recognized under both the state and federal
constitutions, neither the United States Supreme Court nor
this court has ever held that records filed with a
court are treated the same way. We decline to conclude here
that such unfettered access to criminal justice records is
guaranteed by either the First Amendment or Article II,
section 10 of the Colorado Constitution.
Defendant Sir Mario Owens was convicted of first-degree
murder and sentenced to death in 2008. In 2017, the trial
court denied Mr. Owens's motion for post-conviction
relief pursuant to Crim. P. 32.2, as well as his related
motion to disqualify the District Attorney's Office for
the 18th Judicial District and to appoint a special
prosecutor. The basis for the motion to disqualify was an
allegation that the District Attorney had failed to disclose
evidence that would have been favorable to Mr. Owens's
defense. Over Mr. Owens's objection, the trial court
issued a protective order, which remains in place today,
sealing portions of the post-conviction motions
In 2017, The Colorado Independent ("Petitioner")
filed a motion with the district court, asking the court to
unseal the records, arguing that public access to the records
was required by the First Amendment, Article II, section 10
of the Colorado Constitution, common law, and the Colorado
Criminal Justice Records Act. The district court denied that
motion, and Petitioner filed for relief under C.A.R. 21,
limiting its request for relief to the argument that
presumptive access to judicial records is a constitutional
Relief under C.A.R. 21 is an extraordinary remedy limited in
purpose and availability. C.A.R. 21; People v.
Darlington, 105 P.3d 230, 232 (Colo. 2005). Our exercise
of original jurisdiction is discretionary. Fognani v.
Young, 115 P.3d 1268, 1271 (Colo. 2005). We have
previously exercised our original jurisdiction to address
public access to court documents. See, e.g.,
People v. Bryant, 94 P.3d 624, 625-26 (Colo. 2004);
Times-Call Publ'g Co. v. Wingfield, 410 P.2d
511, 511-12 (Colo. 1966). Here, we do so once again.
Because the availability of First Amendment protection
presents a legal question, we review such challenges de novo.
See Cotter v. Bd. of Trustees of Univ. of N. Colo.,
971 P.2d 687, 690 (Colo.App. 1998) (citing Melton v. City
of Oklahoma City, 879 F.2d 706 (10th Cir. 1989),
modified on other grounds, 928 F.2d 920 (10th Cir.
1991), and Kemp v. State Bd. of Agric., 803 P.2d 498
(Colo. 1990)). De novo review is also appropriate for alleged
violations of Article II, section 10 of the Colorado
Constitution. See Robertson v. Westminster Mall Co.,
43 P.3d 622, 625 (Colo.App. 2001) (citing Lewis v. Colo.
Rockies Baseball Club, Ltd., 941 P.2d 266, 271 (Colo.
Here, we reject Petitioner's constitutional arguments for
mandatory disclosure of the records sealed in this matter.
We find no support in United States Supreme Court
jurisprudence for Petitioner's contention that the First
Amendment provides the public with a constitutional right of
access to any and all court records in cases involving
matters of public concern. Petitioner cites none. The Tenth
Circuit has more than once declined to recognize a First
Amendment right of access to court records. See,
e.g., Lanphere & Urbaniak v. Colorado, 21
F.3d 1508, 1512 (10th Cir. 1994) ("[T]here is no general
First Amendment right in the public to access criminal
justice records."); United States v. Hickey,
767 F.2d 705, 709 (10th Cir. 1985) (distinguishing between
the acknowledged right of the public and press to attend
trial proceedings and a claimed of right to access court
Moreover, we have never recognized any such constitutional
right-whether under the First Amendment or Article II,
section 10 of the Colorado Constitution. Petitioner's
near-exclusive reliance on this court's opinion in
Wingfield is misplaced. In Wingfield, we
analyzed a statutory prohibition against the inspection of
court records in pending cases by non-parties. See
410 P.2d at 512. We concluded that while no "absolute
right to examine" court records exists, inspection may
be permitted "at the discretion of the court."
Id. at 513. Contrary to Petitioner's assertion,
this court did not hold in Wingfield that limiting
access to court records violates the First Amendment. See
id. We decline to do so now in ...