The DISTRICT COURT, DOUGLAS COUNTY, COLORADO
4000 Justice Way
Castle Rock, Colorado 80109 DATE FILED: April 29, 2022 5:29 PM
CASE NUMBER: 2022CV30071
(720) 437-6200
Plaintiff: ROBERT C. MARSHALL,
v.
▲COURT USE ONLY▲
Defendants: DOUGLAS COUNTY BOARD OF
EDUCATION; MICHAEL PETERSON, REBECCA Case Number: 2022CV30071
MYERS, KAYLEE WINEGAR and CHRISTY
WILLIAMS, in their official capacities as members thereof. Division: 5
ORDER RE: DEFENDANTS’ MOTION TO DISMISS
THIS MATTER is before the court in connection with “Defendants’ Motion to Dismiss
Plaintiff’s First Amended Complaint” (hereafter “Motion”). The Court has reviewed the
submissions of the parties, the case file, the applicable law, and finds and orders as follows:
STATEMENT OF THE CASE
Defendant Douglas County Board of Education (hereafter “BOE”) is a local public body
subject to the provisions of the Colorado Open Meetings Law, § 24-6-401, et seq. (hereafter
“COML”). 1 Michael Peterson, Rebecca Myers, Kaylee Winegar and Christy Williams are four
of the seven members of the BOE.
Plaintiff Robert C. Marshall (hereafter “Marshall”) filed a Complaint2 alleging the four
Individual Defendants engaged in activity that violated COML by discussing and deciding to
terminate the employment of Corey Wise, as superintendent of the Douglas County School
District, outside a public meeting of the BOE. The Complaint alleges three claims for relief: 1)
Declaratory Relief for Past Violations of the Colorado Open Meetings Law; 2) Injunctive Relief
Barring Further Violations of the Colorado Open Meetings Law; 3) A Declaration that the
Decision to Terminate the Employment of Superintendent Wise is Null and Void.
Marshall also filed a Motion requesting a preliminary injunction prohibiting the
Defendants from further violating COML by engaging in discussions of public business by three
1
The Open Meetings Law is part of the “Colorado Sunshine Act of 1972,” § 24-6-101, et seq.
2
The original complaint was superseded by a First Amended Verified Complaint.
1
or more members of the BOE through a series of gatherings by less than three members at a
time. The hearing on the motion for a preliminary injunction was held on February 25, 2022,
prior to the completion of the briefing on this motion to dismiss. On March 9, 2022, the court
entered its order on that motion. That order is incorporated by reference.
STANDARD OF REVIEW
A motion to dismiss serves as a test of the formal sufficiency of a complaint. Dorman v.
Petrol Aspen, 914 P.2d 909, 911 (Colo. 1996). A court may dismiss a complaint if the court lacks
subject matter jurisdiction pursuant to C.R.C.P. 12(b)(1) or if the complaint fails to state a claim
upon which relief can be granted pursuant to C.R.C.P. 12(b)(5). Courts view Rule 12(b)(5)
motions to dismiss with disfavor and should not grant such motions “unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to
relief.” Dunlap v. Colo. Springs Cablevision, Inc., 829 P.2d 1286, 1291 (Colo.1992) (quoting
Davidson v. Dill, 503 P.2d 157, 162 (Colo. 1972)).
The function of a Rule 12(b)(5) motion is solely to terminate claims for which there is no
remedy based upon the facts as pleaded, and not to obtain an adjudication of facts. Hannon Law
Firm, LLC v. Melat, Pressman & Higbie, LLP, 293 P.3d 55 (Colo. App. 2011). In particular, the
factual allegations of the complaint must be enough to raise a right to relief above the speculative
level and provide plausible grounds for relief. Warne v. Hall, 373 P.3d 588, 590-91 (Colo. 2016).
This plausibility standard is predicated on two working principles: “‘[f]irst, the tenet that a court
must accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions;’ and second, ‘only a complaint that states a plausible claim for relief will survive a
motion to dismiss.’” Id. at 591.
ANALYSIS
The Defendants seek dismissal pursuant to both C.R.C.P. 12(b)(1) and 12(b)(5).
Although the Defendants invoke C.R.C.P. 12(b)(1), their reason for doing so is unclear. The
“Standard of Review” contained in the Motion only addresses section 12(b)(5) which concerns
dismissal for “failure to state a claim upon which relief can be granted.” C.R.C.P. 12(b)(1)
provides that “lack of jurisdiction over the subject matter” is a defense to a claim for relief.
Section 24-6-402(9)(a), C.R.S., however, provides that:
Any person denied or threatened with denial of any of the rights that are conferred on the
public by this part 4 [Sunshine Law/Open Meetings Law] has suffered an injury in fact
and, therefore, has standing to challenge the violation of this part 4.
A right that can be vindicated necessitates a forum in which to do so. That the courts fill
that role is made clear by the following subsection, (9)(b), which states:
The courts of record of this state shall have jurisdiction to issue injunctions to enforce the
purposes of this section [Sunshine Law/Open Meetings Law] upon application by any
citizen of this state.
2
It appears, therefore, that the court does have authority to decide this case and the
Defendants motion to dismiss pursuant to 12(b)(1) is denied.
For reasons stated in the Plaintiff’s Response to the Defendants’ Motion as well as for
reasons set out in in the Court’s Order of March 9, 2022, the Court finds that the Complaint does
set forth factual allegations that raise the right to relief above the speculative level and provide
plausible grounds for relief. The Court, therefore, finds the motion to dismiss pursuant to
C.R.C.P. 12(b)(5) also lacks merit.
CONCLUSION
The Defendants’ motion to dismiss is DENIED.
DONE AND SIGNED this 29th day of April, 2022.
_______________________________________
Jeffrey K. Holmes, District Court Judge
