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                                                      ADVANCE SHEET HEADNOTE
                                                                    June 11, 2018

                                      2018 CO 55

No. 18SA19, In re People v. Sir Mario Owens, Constitutional Law — Public Access to
Court Records.

      In this original proceeding, the supreme court considers and rejects a news

organization’s contention that a trial court erred in refusing to grant public access to

certain records maintained under seal in a capital murder case. The supreme court

emphasizes that, while presumptive access to judicial proceedings is a right recognized

under both the state and federal constitutions, neither the United States Supreme Court

nor the Colorado Supreme Court has ever held that records filed with a court are

treated the same way. The supreme court thus declines the invitation to hold that

unfettered access to criminal justice records is guaranteed by either the First

Amendment or Article II, section 10 of the Colorado Constitution.
                     The Supreme Court of the State of Colorado
                     2 East 14th Avenue • Denver, Colorado 80203

                                     2018 CO 55

                         Supreme Court Case No. 18SA19
                      Original Proceeding Pursuant to C.A.R. 21
                  Arapahoe County District Court Case No. 06CR705
                    Honorable Christopher Munch, Senior Judge

                                        In Re

                                      Plaintiff:
                         The People of the State of Colorado,

                                          v.

                                     Defendant:
                                  Sir Mario Owens.

                                   Rule Discharged
                                       en banc
                                    June 11, 2018


Attorneys for Petitioner The Colorado Independent:
Ballard Spahr LLP
Thomas B. Kelley
Steven D. Zansberg
Gregory P. Szewczyk
       Denver, Colorado

Attorneys for Respondent The District Court for the Eighteenth Judicial District of
Colorado:
Cynthia H. Coffman, Attorney General
Matthew D. Grove, Assistant Solicitor General
      Denver, Colorado

No appearance on behalf of Plaintiff or Defendant.

JUSTICE HART delivered the Opinion of the Court.
¶1    We accepted jurisdiction in this original proceeding to consider The Colorado

Independent’s contention that the Arapahoe County District Court erred in refusing to

grant public access to certain records maintained under seal in a capital murder case.

The Colorado Independent contends that the federal and state constitutions grant a

presumptive right of access to documents filed in criminal cases. While presumptive

access to judicial proceedings is a right recognized under both the state and federal

constitutions, neither the United States Supreme Court nor this court has ever held that

records filed with a court are treated the same way. We decline to conclude here that

such unfettered access to criminal justice records is guaranteed by either the First

Amendment or Article II, section 10 of the Colorado Constitution.

                                            I.

¶2     Defendant Sir Mario Owens was convicted of first-degree murder and sentenced

to death in 2008. In 2017, the trial court denied Mr. Owens’s motion for post-conviction

relief pursuant to Crim. P. 32.2, as well as his related motion to disqualify the District

Attorney’s Office for the 18th Judicial District and to appoint a special prosecutor. The

basis for the motion to disqualify was an allegation that the District Attorney had failed

to disclose evidence that would have been favorable to Mr. Owens’s defense. Over Mr.




                                            2
Owens’s objection, the trial court issued a protective order, which remains in place

today, sealing portions of the post-conviction motions practice.1

¶3     In 2017, The Colorado Independent (“Petitioner”) filed a motion with the district

court, asking the court to unseal the records, arguing that public access to the records

was required by the First Amendment, Article II, section 10 of the Colorado

Constitution, common law, and the Colorado Criminal Justice Records Act. The district

court denied that motion, and Petitioner filed for relief under C.A.R. 21, limiting its

request for relief to the argument that presumptive access to judicial records is a

constitutional guarantee.

                                           II.

¶4     Relief under C.A.R. 21 is an extraordinary remedy limited in purpose and

availability.   C.A.R. 21; People v. Darlington, 105 P.3d 230, 232 (Colo. 2005). Our

exercise of original jurisdiction is discretionary. Fognani v. Young, 115 P.3d 1268, 1271

(Colo. 2005). We have previously exercised our original jurisdiction to address public

access to court documents. See, e.g., People v. Bryant, 94 P.3d 624, 625–26 (Colo. 2004);

Times-Call Publ’g Co. v. Wingfield, 410 P.2d 511, 511–12 (Colo. 1966). Here, we do so

once again.




1Mr. Owens filed a C.A.R. 21 petition with this court in March 2017 seeking to have the
protective order vacated. We declined to issue a rule to show cause. See Order of
Court, In re People v. Owens, No. 17SA59 (Colo. Apr. 7, 2017).
                                            3
¶5     Because the availability of First Amendment protection presents a legal question,

we review such challenges de novo. See Cotter v. Bd. of Trustees of Univ. of N. Colo.,

971 P.2d 687, 690 (Colo. App. 1998) (citing Melton v. City of Oklahoma City, 879 F.2d

706 (10th Cir. 1989), modified on other grounds, 928 F.2d 920 (10th Cir. 1991), and Kemp

v. State Bd. of Agric., 803 P.2d 498 (Colo. 1990)). De novo review is also appropriate for

alleged violations of Article II, section 10 of the Colorado Constitution. See Robertson v.

Westminster Mall Co., 43 P.3d 622, 625 (Colo. App. 2001) (citing Lewis v. Colo. Rockies

Baseball Club, Ltd., 941 P.2d 266, 271 (Colo. 1997)).

¶6     Here, we reject Petitioner’s constitutional arguments for mandatory disclosure of

the records sealed in this matter.

¶7     We find no support in United States Supreme Court jurisprudence for

Petitioner’s contention that the First Amendment provides the public with a

constitutional right of access to any and all court records in cases involving matters of

public concern. Petitioner cites none. The Tenth Circuit has more than once declined to

recognize a First Amendment right of access to court records. See, e.g., Lanphere &

Urbaniak v. Colorado, 21 F.3d 1508, 1512 (10th Cir. 1994) (“[T]here is no general First

Amendment right in the public to access criminal justice records.”); United States

v. Hickey, 767 F.2d 705, 709 (10th Cir. 1985) (distinguishing between the acknowledged

right of the public and press to attend trial proceedings and a claimed of right to access

court files).




                                             4
¶8     Moreover, we have never recognized any such constitutional right—whether

under the First Amendment or Article II, section 10 of the Colorado Constitution.

Petitioner’s near-exclusive reliance on this court’s opinion in Wingfield is misplaced. In

Wingfield, we analyzed a statutory prohibition against the inspection of court records

in pending cases by non-parties. See 410 P.2d at 512. We concluded that while no

“absolute right to examine” court records exists, inspection may be permitted “at the

discretion of the court.” Id. at 513. Contrary to Petitioner’s assertion, this court did not

hold in Wingfield that limiting access to court records violates the First Amendment.

See id. We decline to do so now in the absence of any indication from the nation’s high

court that access to all criminal justice records is a constitutionally guaranteed right

belonging to the public at large.

¶9     We also see no compelling reason to interpret our state constitution as

guaranteeing such a sweeping—and previously unrecognized—right of unfettered

access to criminal justice records. On the contrary, such a ruling would do violence to

the comprehensive open records laws and administrative procedures currently in

place—including, but not limited to, the Colorado Criminal Justice Records Act,

§§ 24-72-301 to -309, C.R.S. (2017)—that are predicated upon the absence of a

constitutionally guaranteed right of access to criminal justice records.

                                            III.

¶10    We affirm the denial of The Colorado Independent’s motion to unseal the subject

records and, consequently, discharge the rule.


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