Boulder County District Court No. 17CV215 Honorable Thomas F.
Kristin Bjornsen, Pro Se
Benjamin H. Pearlman, County Attorney, David Hughes, Deputy
County Attorney, Catherine ("Trina") Ruhland,
Assistant County Attorney, Boulder, Colorado, for
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.
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
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
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.
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
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.
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.
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
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,
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 ...