Gleason v. Judicial Watch, Inc., 11CA0930.

• Decision Date: 26 April 2012
• Docket Number: No. 11CA0930.,11CA0930.
• Citation: 292 P.3d 1044
• Parties: John GLEASON, in his official capacity as Supreme Court Regulation Counsel, Petitioner–Appellant and Cross–Appellee, and Office of Attorney Regulation Counsel, Appellant and Cross–Appellee, v. JUDICIAL WATCH, INC., Respondent–Appellee and Cross–Appellant.
• Court: Colorado Court of Appeals

292 P.3d 1044

John GLEASON, in his official capacity as Supreme Court Regulation Counsel, Petitioner–Appellant and Cross–Appellee,

and

Office of Attorney Regulation Counsel, Appellant and Cross–Appellee,

v.JUDICIAL WATCH, INC., Respondent–Appellee and Cross–Appellant.

No. 11CA0930.

Colorado Court of Appeals,

Div. VI.

April 26, 2012.

John W. Suthers, Attorney General, Maurice Knaizer, Assistant Attorney General, Denver, Colorado, for Petitioner–Appellant and Cross–Appellee and Appellant and Cross–Appellee.

Rouse Law Office, P.C., James P. Rouse, Denver, Colorado; Michael Bekesha, Washington, DC, for Respondent–Appellee and Cross–Appellant.

Opinion by Judge BERNARD.

¶ 1 This appeal involves the friction that is produced when two important interests conflict. On the one hand, the public has an important interest in the openness of its government, in part to find out what the government is doing. On the other hand, there are important reasons for maintaining the confidentiality of certain categories of information found in government records.

¶ 2 Here, the important interest in governmental openness is represented by respondent, Judicial Watch, Inc. It requested access to certain records under the Colorado Open Records Act (CORA), sections 24–72–201 to –206, C.R.S.2011. CORA generally addresses public access to governmental records.

¶ 3 The important reasons for maintaining the confidentiality of information are represented by petitioner, John Gleason, in his official capacity as Supreme Court Regulation Counsel, and the Office of Attorney Regulation Counsel (collectively, regulation counsel). Regulation counsel possesses the records that Judicial Watch seeks. They pertain to the appointment of regulation counsel by the Chief Justice of the Colorado Supreme Court, at the request of the Chief Justice of the Arizona Supreme Court, to investigate the conduct of lawyers in Arizona. Regulation counsel denied Judicial Watch's request.

¶ 4 This dispute ended up in court. The trial court granted most of Judicial Watch's request and denied the rest. Both sides appeal. We affirm in part and reverse in part, and we remand to the trial court to enter an order denying Judicial Watch's entire request.

¶ 5 We base our decision on the recognition that the two important interests at issue here co-exist in a delicate balance. To resolve the friction between them and to maintain that balance, we reach several conclusions.

¶ 6 First, regulation counsel is part of the judicial branch.

¶ 7 Second, we follow the holding of our supreme court that the scope of the statutory vehicle—CORA—upon which Judicial Watch relies does not include the judiciary, and, thus, does not include regulation counsel.

¶ 8 Third, although the judiciary has promulgated court rules that may govern access to the types of records that Judicial Watch seeks, Judicial Watch has made clear its position that such rules do not govern its request. Therefore, we take no position on whether those rules apply.

I. Background

¶ 9 In March 2010, regulation counsel was appointed to investigate allegations of misconduct by the former Maricopa County, Arizona, Attorney and two deputy county attorneys whom he supervised. The appointment was made by order of the Chief Justice of the Arizona Supreme Court, and was authorized by the Chief Justice of the Colorado Supreme Court.

¶ 10 In September 2010, Judicial Watch asked regulation counsel to release the following records for inspection:

[Request (1) ]: Records of communications between regulation counsel, the Arizona Supreme Court, and/or the Arizona State Bar concerning the appointment of regulation counsel by the Arizona Supreme Court chief justice to serve as independent bar counsel in the investigation;

[Request (2) ]: Records of communications between regulation counsel, the Colorado Supreme Court, and/or the Attorney Regulation Committee of the Supreme Court of Colorado concerning the appointment;

[Request (3) ]: Records concerning the authority of regulation counsel, under Colorado law, to accept the appointment;

[Request (4) ]: Records concerning the authority of regulation counsel, under Colorado law, to investigate or prosecute allegations of attorney misconduct for an entity other than the Supreme Court of Colorado;

[Request (5) ]: Records concerning the authority of regulation counsel, under Colorado law, to investigate or prosecute allegations of attorney misconduct against non-Colorado attorneys or attorneys who are not alleged to have engaged in misconduct in Colorado;

[Request (6) ]: Any and all bills, invoices, or statements for services rendered or expenses incurred by regulation counsel in serving as independent bar counsel for the investigation; and

[Request (7) ]: Any and all records of payments received by regulation counsel, the Colorado Supreme Court, or the State of Colorado for services rendered or expenses incurred by regulation counsel in serving as independent bar counsel.

¶ 11 Regulation counsel denied these requests. Then, under section 24–72–204(5) and (6)(a), C.R.S.2011, respectively, Judicial Watch and regulation counsel each filed court actions seeking relief. Judicial Watch asked the court to order regulation counsel to disclose the records, and regulation counsel asked the court to issue an order stating that Judicial Watch was not entitled to disclosure of the records it sought. The trial court consolidated the two cases.

¶ 12 In February 2011, as a result of its investigation, regulation counsel filed a formal complaint with the presiding disciplinary judge in Arizona against several Arizona attorneys.

¶ 13 In April 2011, the trial court ordered regulation counsel to allow Judicial Watch to inspect all the requested records in Requests (1), (2), (3), (4), (5), and (7), but denied its request to inspect some of the records described in Request (6), which consisted of detailed billing records. Regulation counsel appeals the part of the court's order requiring it to disclose records. Judicial Watch cross-appeals from the part of the order denying its request to inspect the detailed billing records described in Request (6).

II. Analysis

A. General Principles

¶ 14 The resolution of this case requires us to interpret statutes and court rules. These are questions of law, which we review de novo. See Argus Real Estate, Inc. v. E–470 Pub. Highway Auth., 109 P.3d 604, 608 (Colo.2005) (statutes); Brown v. Silvern, 141 P.3d 871, 874 (Colo.App.2005)(rules of procedure).

¶ 15 When interpreting a statute, our primary responsibility is to give effect to the legislature's intent. We look first to the statute's plain language, reading it in the context of the statute as a whole and in the context of the complete statutory scheme. If the statute is clear and without ambiguity, we apply it as it is written. People v. Sexton, 2012 COA 26, ¶ 16, ––– P.3d ––––, 2012 WL 503648.

¶ 16 The standard principles of statutory construction apply to the interpretation of court rules. Leaffer v. Zarlengo, 44 P.3d 1072, 1078 (Colo.2002).

B. Regulation Counsel Is Part of the Judicial Branch

¶ 17 “The Colorado Supreme Court, as part of its inherent and plenary powers, has exclusive jurisdiction over attorneys and the authority to regulate, govern, and supervise the practice of law in Colorado to protect the public.” Colo. Supreme Court Grievance Comm. v. Dist. Court, 850 P.2d 150, 152 (Colo.1993). The exercise of this jurisdiction is a “judicial function [ ] [that] fall[s] within the powers and duties of the judicial branch of the government made up of our constitutionally [and statutorily] created courts.” Conway–Bogue Realty Inv. Co. v. Denver Bar Ass'n, 135 Colo. 398, 406, 312 P.2d 998, 1002 (1957).

¶ 18 The judiciary has “inherent and plenary powers,” with or without any statutory enactments, “to regulate and control the practice of law to the extent that is reasonably necessary to the proper functioning of the judiciary.” Id. at 407, 312 P.2d at 1002–03. Thus, all attorneys who are licensed to practice law are subject to “the disciplinary and disability jurisdiction of the [Colorado] Supreme Court in all matters relating to the practice of law.” C.R.C.P. 251.1(b).

¶ 19 Regulation counsel's duties include “conducting investigations” of, and “[p]repar[ing] and prosecut[ing] disciplinary .... actions” against, attorneys who have allegedly violated the C.R.C.P. 251.1(a), (c), 251.3(c)(3), (4). Regulation counsel is appointed by, and serves at the pleasure of, the supreme court. C.R.C.P. 251.3(a).

¶ 20 In addition to the specifically enumerated regulatory duties, regulation counsel must “[p]erform such other duties as the Supreme Court may direct.” C.R.C.P. 251.3(c)(12). Funding for regulation counsel comes from attorney registration fees as designated by the supreme court. C.R.C.P. 227(A)(1)(a), (c). Regulation counsel operates under a budget approved by the supreme court. C.R.C.P. 251.3(c)(1).

¶ 21 Regulation counsel is subject to the direction of the supreme court, and participates in the process of regulating attorneys. Thus, we conclude that regulation counsel is part of the judicial branch because it is part of a process that falls within the powers and duties of the judicial branch. See Colo. Supreme Court Grievance Comm., 850 P.2d at 152;Conway–Bogue Realty Inv. Co., 135 Colo. at 406–07, 312 P.2d at 1002–03.

¶ 22 By a parity of reasoning, this conclusion leads us to another. Because regulation counsel is part of the judicial branch, the records of regulation counsel are judicial records.

C. CORA Does Not Require the Judiciary to Release the Records Requested by Judicial Watch

¶ 23 The legislature announced its intent in enacting CORA in section 24–72–201, C.R.S.2011: “It is declared to be the public policy of this state that all public records shall be open for inspection by any person at reasonable times, except as provided in this part 2 [CORA] or as otherwise specifically provided by law.” The term ...