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Bjornsen v. Board of County Commissioners of Boulder County

Court of Appeals of Colorado, Seventh Division

April 25, 2019

Kristin Bjornsen, Plaintiff-Appellant,
Board of County Commissioners of Boulder County and Frank Alexander, in his official capacity as Executive Director of the Boulder County Housing Authority, Defendants-Appellees.

          Boulder County District Court No. 17CV215 Honorable Thomas F. Mulvahill, Judge

          Kristin Bjornsen, Pro Se

          Benjamin H. Pearlman, County Attorney, David Hughes, Deputy County Attorney, Catherine ("Trina") Ruhland, Assistant County Attorney, Boulder, Colorado, for Defendants-Appellees

          ASHBY JUDGE.

         ¶ 1 Plaintiff, Kristin Bjornsen, filed claims alleging that defendants, the Board of County Commissioners of Boulder County (Board), and Frank Alexander, executive director of the Boulder County Housing Authority (BHCA), violated the Colorado Open Meetings Law (COML) and the Colorado Open Records Act (CORA). She alleged that the Board held executive sessions in violation of the COML and defendants improperly withheld documents she requested in violation of both the COML and the CORA.

         ¶ 2 The district court granted defendants summary judgment on the executive session claims and, after a hearing, ruled that defendants properly withheld the contested documents. Bjornsen appeals both the summary judgment and document disclosure rulings. We reverse the summary judgment, reverse two of the document disclosure rulings, affirm the court's other rulings, and remand with directions.

         I. Background

         ¶ 3 Bjornsen lived in Gunbarrel and was concerned about Boulder County authorizing an affordable housing development at the Twin Lakes Open Space. She requested public records related to the Board's consideration of this issue under the CORA. Pursuant to her request, defendants provided her with hundreds of pages of documents. However, defendants determined that some of the information Bjornsen sought was not subject to public disclosure under the CORA. Defendants therefore withheld some documents and redacted parts of others.

         ¶ 4 Bjornsen sued defendants, alleging that they wrongfully withheld certain documents, or parts of documents, under the CORA and the COML. She also alleged that the Board convened numerous executive sessions in violation of the COML. The district court bifurcated the case and addressed the executive session and document disclosure claims separately. Defendants moved for summary judgment on the executive session claims, while the document disclosure claims were set for a hearing.

         ¶ 5 Before the hearing, the district court granted defendants' summary judgment on the executive session claims. However, the court provided no explanation or analysis to support its ruling. It neither identified the undisputed facts nor explained the legal basis for granting summary judgment.

         ¶ 6 At the hearing, various witnesses testified, including Bjornsen. In a written order, the district court ruled that Bjornsen was not entitled to any of the documents she claimed defendants wrongfully withheld or redacted.

         ¶ 7 Bjornsen appeals, arguing that the district court erred by (1) bifurcating the executive session and document disclosure claims; (2) granting defendants summary judgment on the executive session claims; and (3) ruling that she was not entitled to any of the withheld or redacted documents.

         II. District Court Properly Bifurcated the Case

         ¶ 8 Bjornsen argues that the district court violated C.R.C.P. 42(b) by bifurcating the case without making any findings. We see no reversible error.

         ¶ 9 C.R.C.P. 42(b) provides that trial courts may conduct separate trials on issues or claims brought in the same action "in furtherance of convenience, or to avoid prejudice, or when separate trials will be conducive to expedition or economy." Trial courts have "broad discretion" to determine when bifurcation is appropriate under this rule. Gaede v. Dist. Court, 676 P.2d 1186, 1188 (Colo. 1984). A trial court errs only when it abuses that discretion. See O'Neal v. Reliance Mortg. Corp., 721 P.2d 1230, 1232 (Colo.App. 1986). Ordering separate proceedings on different claims is an abuse of discretion if it "virtually assures prejudice to a party." Id.

         ¶ 10 In granting defendants' motion to bifurcate, the district court did not make any findings or explain its ruling. We agree with Bjornsen that the district court should have explained why bifurcating the claims was proper under C.R.C.P. 42(b). See Sutterfield v. Dist. Court, 165 Colo. 225, 231, 438 P.2d 236, 240 (1968) (Trial court's severance of claims was improper because court "made no finding that any of the conditions permitting separate trials of properly joined claims were present" under C.R.C.P. 42(b).).

         ¶ 11 However, we will not disturb a trial court's ruling unless it affected the substantial rights of the parties. C.R.C.P. 61. And Bjornsen's opening brief fails to sufficiently explain how the bifurcation affected her substantial rights. She argues that the bifurcation "created a presumption - and possible predisposition - toward summary judgment [and] caused or contributed to: a delay in the case's resolution; failure of settlement discussions; and the exclusion of interrelated evidence at the . . . hearing." She also argues that the bifurcation caused her pro bono attorney to withdraw from representing her. But she does not explain how the bifurcation caused these things to happen, nor does she identify the evidence that she would have otherwise introduced at the hearing. Such conclusory arguments are insufficient to establish that her substantial rights were violated. See Harner v. Chapman, 2012 COA 218, ¶ 37 (lack of substantive argument that evidentiary "irregularities" prejudiced plaintiff precluded relief), rev'd on other grounds, 2014 CO 78.

         III. District Court Erred by Granting Summary Judgment

         ¶ 12 Bjornsen next argues that the district court erred by granting defendants summary judgment on her claims that the Board convened executive sessions in violation of the COML. We review the district court's ruling de novo, see Campaign Integrity Watchdog v. Coloradans for a Better Future, 2016 COA 56M, ¶ 12, and agree with Bjornsen.

         ¶ 13 Summary judgment is a drastic remedy that is appropriate only if the material facts are undisputed and establish that the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(c); Westin Operator, LLC v. Groh, 2015 CO 25, ¶¶ 19, 21. The burden is on the moving party to establish that summary judgment is appropriate. See Meyer v. State Dep't of Revenue, 143 P.3d 1181, 1184 (Colo.App. 2006). All doubts must be resolved against the moving party and the nonmoving party is entitled to the benefit of all favorable inferences that may be fairly drawn from the undisputed facts. See Westin Operator, LLC, ¶ 20.

         ¶ 14 When ruling on a summary judgment motion, a court may consider only sworn or certified evidence. See C.R.C.P. 56(e); Cody Park Prop. Owners' Ass'n, Inc. v. Harder, 251 P.3d 1, 4 (Colo.App. 2009).

         ¶ 15 The COML requires that if a quorum of a local public body, such as the Board here, meets to discuss public business or take any formal action, that meeting shall be open to the public. § 24-6-402(2)(b), C.R.S. 2018. However, a local public body can, for limited reasons and under certain circumstances, convene an executive session that is not open to the public. § 24-6-402(4). Executive sessions can be convened "only at a regular or special meeting" and only for a purpose enumerated in the COML. Id. These purposes include receiving legal advice from an attorney on specific legal questions and discussing the purchase, acquisition, lease, transfer, or sale of any real, personal, or other property. § 24-6-402(4)(a), (b).

         ¶ 16 Entering into executive session requires the vote of two-thirds of the quorum of the local public body present. § 24-6-402(4). Before starting the executive session, the local public body must also announce the topic for discussion in the session with as much detail as possible without compromising the purpose of meeting in private. Id. Discussions that occur in executive session must be electronically recorded unless they are protected by attorney-client privilege. § 24-6-402(2)(d.5)(II)(A), (B). If an executive session is convened improperly, the record of the session is open to the public. See Gumina v. City of Sterling, 119 P.3d 527, 531 (Colo.App. 2004).

         ¶ 17 Bjornsen's complaint alleged that the Board violated the COML by repeatedly convening executive sessions without first announcing the topic to be discussed and failing to electronically record them. The complaint identified several specific dates and times at which these alleged violations occurred. Based on these alleged violations, Bjornsen asked for (1) a declaratory judgment that the Board had repeatedly violated the COML and (2) injunctive relief ordering the Board to comply with certain practices going forward.

         ¶ 18 In their motion to the district court, defendants argued that they were entitled to summary judgment on alternative grounds. First, they argued that the Board's executive sessions always complied with the COML. Second, they argued that the declaratory and injunctive relief Bjornsen sought was not available as a matter of law.

         ¶ 19 We have no idea on what grounds the district court granted summary judgment because the court made no findings and provided no analysis. C.R.C.P. 52 does not require that courts make findings of fact and conclusions of law when ruling on summary judgment. But the comment to that rule states that "even where findings and conclusions are not required, the better practice is to explain in a decision on any contested, written motion the court's reasons for granting or denying the motion." C.R.C.P. 52 cmt. And where, as here, the motion articulated alternative bases on which the court could grant summary judgment and the opposing party was pro se, we strongly discourage granting summary judgment without factual findings or analysis.

         ¶ 20 Nevertheless, because we review summary judgment rulings de novo, the district court's failure to make findings or articulate its rationale does not abrogate our responsibility to review whether summary judgment was ...

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