Open, transparent

Sealed records, secret meetings - what government should avoid

Rocky Mountain News

Published April 11, 2008 at 12:05 a.m.

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Government officials are often tempted to conceal public business. Sometimes they want to prevent disclosure of actions that will cast a bad light on the people involved. In other cases, they avoid transparency because it can hinder efficiency, or "getting things done."

Fortunately, not everyone in authority fully shares those views. The need for openness is underscored in two recent incidents where a desire for secrecy is at odds with the public's right to know.

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The first case involves Arapahoe County sheriff's deputy Daniel Montana Jr., who wants to seal the records of his involvement in the fatal shooting of Sheridan, Mont., native David Rossiter last November.

Montana was off duty when he shot Rossiter after an altercation at a freeway off-ramp near their vehicles. According to witness reports, Rossiter and Michael Hunter - who later pleaded guilty to driving while impaired - were beating Montana near the deputy's personal vehicle; Montana fired his weapon, killing Rossiter.

A grand jury did not indict Montana. He was cleared after an internal affairs investigation and returned to active duty this week.

Montana's attorneys claim that his career in law enforcement could be damaged unless the files are sealed. Officials in Lakewood, Jefferson County and Arapahoe County are objecting, for both principled and practical reasons.

As Lakewood deputy city attorney Janet Young said, the shooting took place less than six months ago on a public street. Sealing the records might suggest a police coverup. That's putting it mildly.

Moreover, Rossiter's surviving family members may file a federal civil rights lawsuit against Montana. Sealing the records might deny litigants access to crucial information about the incident.

In short, it would be a major mistake.

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Meantime in Denver, City Council members Jeanne Faatz and Jeanne Robb may move to align the public meetings provision of the municipal code with state law. Denver's code states that the public meeting law is triggered only when a majority of council members (meaning seven) get together to discuss official business. Under state law covering non-home-rule cities, the presence of three council members requires a public meeting and proper notice.

We wish Faatz and Robb success as they try to tighten the rules. Had the state law been in effect, a closed-door gathering last month involving an $85 million city contract could not have taken place, legally anyway.

At the meeting, Councilmen Doug Linkhart, Chris Nevitt and Paul Lopez convened with labor leaders and a contractor to discuss a parking contract at Denver International Airport.

A company official told the Rocky that the councilmen seemed to be negotiating on behalf of the union. In a letter to the Rocky, the councilmen said everything was above board. And besides, this meeting was nothing more than routine oversight.

Routine? Hardly. But we'll never know since the jawboning session occurred in secret.

Mayor John Hickenlooper has set the example. He treats any meeting with at least two council members as a public meeting, and does his best to provide proper notice. The council should adopt a similar policy of openness.

• April 11, 2008

  11:27 a.m.

  Suggest removal

  peteSmith writes:

  There are many examples of secrecy on Colorado: Rick Wehmhoefer, Executive Dir. of our Commission for the Abolition of Judicial Discipline (see http://www.knowyourcourts.com/JDC/JDC...) concludes his letters to complainants with: "this matter is strictly confidential pursuant to Article VI, Section 23(3)(g) of the Colorado Constitution and sections 24-72-401, et. seq. [providing for misdemeanor conviction & fine], Colorado Revised Statutes." (See http://www.knowyourcourts.com/JDC/doc... for an example memo). Heaven forbid, we wouldn't want the public learning what allegations might have been made about a judge -no instead, we leave that to the Judicial Performance Commissions, which we can trust to spoon-feed us with the information that they have determined we ought to have.

  During a telephone conversation with me, "Dr. Rick" explained that, he was aware of comments that had been made on the Internet about filings with his office and that these comments and discussions (such as, perhaps, this one) were subject to the aforementioned regulations, perhaps suggesting that I am liable (as noted above). Unfortunately, Dr. Rick has long forgotten his Constitutional Law class from law school, so many years ago, regarding prior restraints on First Amendment protected speech. See also Wehmhoefer, Confidentiality of Judicial Disciplinary Proceedings, 17 Colo.Law. 1043 (1988) (available at: http://www.knowyourcourts.com/JDC/doc...(Confidentiality-of-Judicial-Disciplinary-Proceedings-(1988)).pdf )

  I also note that Colorado's Division of Regulatory Agencies contacted KnowYourCOurts.com and misrepresented a statute in a poorly executed censorship attempt concerning the content on this page: http://www.knowyourcourts.com/ColoPsy... See the memo at: http://www.knowyourcourts.com/2007-02...

  Finally, we have the policy of sealing all domestic-relations cases in Colorado from public scrutiny under the sophistic reasoning of preventing identity theft (which, according to the State Court Administrator's office, has never been documented on the basis of domestic relations court filings). See http://www.knowyourcourts.com/Public_...

• April 11, 2008

  1:03 p.m.

  Suggest removal

  peteSmith writes:

  There is a Committee, the Public Access Committee (http://www.courts.state.co.us/supct/c...)

  As former Gov. Owens said, when he vetoed a 2002 bill pertaining to this category of cases, “If these records are unavailable to the public . . . we will have no effective means to determine how the judicial branch in general and individual judges in particular handle dissolution of marriage, child custody and child support matters.” He was right. We have thriving divorce industry full of charlatans and there's no way to regulate it or even know what the hell they're doing: See http://www.knowyourcourts.com/divorce...

  Attorney David Heleniak, in his article, The New Star Chamber, Rutgers Law Review, vol. 57, no. 3 (Spring 2005) (http://www.knowyourcourts.com/News/th...), 1009, analyzed the "due process fiasco" of family law. Calling family courts "an area of law mired in intellectual dishonesty and injustice," Heleniak described six commonplace deprivations of fundamental due process (seizure of children and railroading innocent parents into jail through denial of trial by jury; denial of poor defendants to free counsel; denial of right to take depositions; lack of evidentiary hearings; lack of notice; and improper standard of proof). In family law, "the burden of proof may be shifted to the defendant," according to a handbook for local officials published by the National Conference of State Legislatures.

  Also, in Federal Court Jurisdiction in Family Law Cases (May 2004) (http://www.rbs2.com/dfederal.pdf), attorney Ronald B. Standler, Ph.D., Esq., explains:

  "Occasionally in divorce cases, there is a serious issue of constitutional law. State courts are inhospitable places to get state statutes, or the common law made by state family courts, declared unconstitutional. (The U.S. Supreme Court often reverses decisions of state appellate courts. If state appellate courts use unconstitutional law in criminal and tort cases, then those [same] state appellate courts probably also use unconstitutional law in divorce cases). U.S. District Courts and the U.S. Courts of Appeals do not have appellate jurisdiction over cases tried in state courts. And the U.S. Supreme Court very rarely accepts domestic relations cases. So, in this scheme, if divorce law violated a right in the U.S. Constitution, then we would have no federal judicial forum willing to consider the complaint. . . I believe it is likely that serious constitutional (and social) issues in family law are being ignored by courts in the USA. The archaic nature of divorce law in many states, the paternalistic nature of many judges in divorce courts, who ignore the law, and the lack of careful consideration given by overloaded judges in divorce courts all contribute to a situation that is ripe for injustice and unfairness."

  So, for all of these reasons, the public has a right to know what judges are up to.

• April 11, 2008

  8:21 p.m.

  Suggest removal

  Sweetpickle writes:

  When has any officers career been hurt just because he shot some innocent bystanders ?

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