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2nd-response-to-tro-and-prelim-and-perm-inj-relief-03-15-10

VIEWS: 22 PAGES: 7

									 DISTRICT COURT, COUNTY OF DENVER
 STATE OF COLORADO                                                  COURT USE ONLY 
 Court Address:
 Denver City and County Building
 1437 Bannock St.
 Denver, Colorado 80202
 Plaintiff:
 Candy A. Campbell

 v.                                                                         Case No.
                                                                           09 CV 0591
 Defendant:
 Bjorn K. Borgen
                                                                           Courtroom
                                                                               3
 Plaintiff:
 Candy Campbell,
 Pro Se
 1245 Eudora Street
 Denver, CO 80220
 Phone Number: 720-233-5426
 E-mail: candy@coloradowomen.org
     PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION FOR TEMPORARY
   RESTRAINING ORDER, AND PRELIMINARY AND PERMANENT INJUNCTIVE
     RELIEF, ENJOINING PLAINITFF TO REMOVE PUBLICATIONS TO THE
                              INTERNET


               Pursuant to C.R.C.P. 121 § 1-5, Plaintiff, Candy A. Campbell, appearing pro se
("Campbell") submits its response to Defendant's Request for Temporary Restraining Order and
Preliminary and Permanent Injunctive Relief, Enjoining Plaintiff To Remove Publications To The
Internet and submits its response as follows:

                1.       The undersigned certifies pursuant to C.R.C.P. 121 § 1-15(8) that the
Defendant conferred with Plaintiff prior to the filing of this motion. Plaintiff directly opposes the
motion for the second time. A telephone conversation that occurred between Campbell and Glenn
Merrick, Joseph Bernstein and Dyanna Spicher on February 15, 2010 was initiated as a demand by
the Defense for Campbell to cease posting any personal commentaries about her experience with this
case as a pro se Plaintiff. Campbell agreed to remove any personal reference to Mr. Bjorn Borgen in
her accounts but exercised her First Amendment rights to maintain the postings and confirmed with
counsel that all details provided were of public record. Further, statements by counsel for the
Defendant are inaccurate and have been disputed by the Plaintiff in the original response to this
duplicate motion by the Defendant.

               2.      The Motion is a violation of Campbell's First Amendment Rights. The United
States' Constitution and well-established Supreme Court precedent compel the dismissal of the
Defendant's temporary and permanent injunction with the state court.

               3.      The Defendant has accused the Plaintiff of posting false or misleading
material respecting Borgen. The Plaintiff has not engaged in any activity that reflects any
misstatements or the posting of any information that is not currently public knowledge or that may
be categorically untrue. Any statements made by the Plaintiff are supported by first hand accounts,
personal correspondence, witness affidavits, depositions and police and public records. Campbell
posted her personal logs without anonymity and continues to maintain each and every statement
made that includes Mr. Borgen is made with great accuracy and journalistic integrity, which can be
verified.

                4.     Counsel for the Defendant claims they demanded online internet postings be
removed by third party websites and that this demand was complied with. It was not. The
information posted is accurate and factual and will not be removed by any press site that has hosted
its content by mere virtue of First Amendment Rights.

                5.      Plaintiff asserts that "The Internet has revolutionized the manner in which we
communicate. The Internet is without doubt the most vital and active forum where freedom of speech
rights are exercised today --a place where citizens can publish their views to be seen by a few close
friends or spread around the world; where citizens can engage with others on thousands of bulletin
boards and chat rooms on nearly any topic, create new communities of interest, or communicate
anonymously about sensitive topics." Katy Johnson vs Tucker Max, ACLU Amicus, 03 80515 CIV
Florida District Court. The court found in favor of Tucker Max and reversed an order for injunctive
relief on the grounds that it violated Max's First Amendment right. The full brief is attached as
Exhibit A. While Max's statements on his blog about Ms. Vermont are reprehensible to Campbell as
a woman, Campbell believes Max has paved the way for victims to speak up about their attackers
and deter future unfortunate and illegal behavior. Campbell's blog postings serve to communicate
about sensitive topics, namely sexual harassment and individuals asserting their rights to proceed in
court pro se when victims cannot afford counsel and/or are not protected by Title VII due to the size
of their company. This by its very essence, is of public interest.

                6.      Plaintiff further asserts that the statements made in any and all blog posting,
press release and/or other materials including public speaking engagements, are factually based and
can be identified by signed documentation, affidavits, police reports, emails and first hand accounts,
which, while may be offensive are none the less accurate and true.

             7.     Journalistic Integrity of Postings and Content. Campbell is a journalist who
owned a media company valued at $1.5 million as exhibited by documentation between Borgen and
Campbell to which she operated for four years prior to Borgen's investment. Campbell's blog is a
personal account of a journalist's experience as a pro se Plaintiff in a very critical legal suit that
embodies abuse of power and sexual harassment. The written accounts are factually based and
supported by public and private documents as well as witness affidavits. The blog is not intended to
publish defamatory material. It is intended to assist other women who are experiencing similar
matters surrounding sexual harassment and sexual misconduct giving weight to the importance of
public information, legal resources and victim assistance. This assistance is captioned in press
releases referencing the ProSeProject blog by ColoradoWomen.org and is a matter of public interest.

                 8.      Statements made by Campbell in press releases and in blog content is based on
factual data that can be derived by public documents with the exception of the police report that
captions an Unlawful Sexual Contact charge against the Defendant (Exhibit B). Due to the
venomous retaliation on the part of the Defendant and accusations that Campbell's content contains
false allegations, the police report has dutifully been added to the blog postings to corroborate
Campbell's statements further prompting a protection against a motion for temporary restraining
order to remove the publications to the internet as the police report concludes a charge for Unlawful
Sexual Contact was founded. As such, if prosecuted for this charge, the Defendant would be required
to register as a sex offender to protect the interests of the public.

                9.       The Defendant's use of evidence to create a "modified story" to present to this
Court involves a high degree of manipulation. As interjected several times in the Defendant's
motions, portions of this case have been presented inaccurately. The purpose of a trial is to hear all
evidence in its entirety. Borgen has presented a number of inconsistencies and false statements under
oath, which are countered by witness affidavits, public records, further correspondence and lack of
rebuttals on the part of the Defendant that serve to capture the entire story rather than a small
glimpse.

               10.     Borgen does not have a reasonable probability of success on the merits as a
Defendant of this case. Fabricated statements, hiding evidence and perjury do not support an
argument in favor of the Borgen. Campbell will continue to provide adequate evidence to support her
claim and will expect an impartial court to hear the evidence and rule accordingly.

                 11.     In response to the Defendant's statement that Campbell "threatened" to file a
criminal complaint, Campbell did in fact seek the counsel of the Assistant District Attorney after
conversing with the Denver Police Department. Campbell has stated on numerous occasions that she
did not file assault charges in 2006 as she believed her civil suit would find in favor of Campbell and
bring to light Borgen's untoward advances, assault and retaliation. Further, filing charges against
Borgen in 2006 would surely have sealed Campbell's fate and the fate of her company simply by the
expected retaliation of Borgen. While this did in fact occur, Campbell was diligent at pursuing her
civil suit with the resources available placing a great deal of faith in the legal system. Borgen was
questioned in his 2008 deposition on the nature of his advances, supporting Campbell's claims early
on that Borgen's untoward behavior was and has been a prominent factor in this case and the case
prior. Further, Campbell did not "fail to file a criminal complaint", she stated to both the Police
Department and the Assistant District Attorney that she feared Borgen's retaliation after she refused
his advances and the pursuit of any assault charges would devastate her job and her company. These
statements are consistent with statements made by Campbell in 2007 and 2008 to advisors and
personal confidants as well as the letter submitted to Ms. Borgen in 2008.

                12.      After discussing the matter of Borgen's assault with the Assistant District
Attorney, Maggie Conboy, in February 2010, Ms. Conboy informed Campbell that she had a civil
remedy for her charge. At this time, Campbell was only aware of an IIED claim to satisfy the claim.
Ms. Conboy initiated that Campbell may also find an Assault and Battery tort claim available to her.
If appropriate, after sufficient findings of assault and unlawful sexual contact are reviewed, a motion
to add a civil claim for remedy as captioned in a tort claim for Assault and Battery would be
submitted as an amended complaint on behalf of the Plaintiff by permission of the court.

                13.     The requested Injunctive Relief will be a great disservice to the public interest
as well as that of the victim in this case, the Plaintiff. Campbell must be given the same rights and
consideration as Borgen in this case, regardless of Borgen's financial or social status . The harm in
requiring Campbell to remove the subject blog postings violates Campbell's First Amendment rights
and clearly affords favor to the Defendant. Further, Campbell is a published author and has over
twenty years of experience as a journalist. The restriction on Campbell affects her life and interests to
a great degree as it prevents a substantial economic loss and injury which can be measured and is
measured through the details of this case. What is particularly relevant and has been relayed to
counsel for the Defendant is that a favorable verdict is far more beneficial than a single dollar. A
favorable verdict will serve as a benchmark for so many other women who have endured similar
harassment without remedy and without the support of the courts or the legal system, particularly
those who cannot afford counsel.

                14.      The Injunction will not preserve the Status Quo, rather it will impact the
merits of this litigation by serving the personal interests of the Defendant and not preserving the
rights of the Plaintiff to a fair trial. Regardless of the outcome, this case is an important aspect in
securing every individuals right to a fair trial and Campbell's documentation of her ongoing
experience is a legal right and benefits society as a whole. Campbell has only demanded just and fair
treatment to plead her case. Not once has Campbell suggested via a blog posting or otherwise that the
Defendant provide monetary compensation in exchange for Campbell's silence. This is a fabrication
of the Defendant in order to ease the discomfort of the Defendant in this trial.

                15.      First and foremost, the Courts are designed to preserve justice and protect an
individual's civil rights. Mr. Borgen's financial and social status does not and should not ever place a
lesser value on Campbell's individual rights and her right to a fair trial. Borgen' seized Campbell's
assets and stripped her of her job out of retaliation. Borgen also asserted himself upon Campbell and
with a proper investigation by the Denver Police Department, has in fact violated Campbell's civil
rights.

               16.    The potential harm to an individual's reputation as derived from this suit and
exposing an attempt to cover up illegal and abusive behavior on the part of the Defendant does not
warrant a restraining order and injunctive relief. Defendant's embarrassment for unlawful activities
does not outweigh public interest. Further, the Defendant, as well as the Plaintiff are both subject to
a multitude of scrutiny as Campbell is a very public figure in the Colorado business community and
Borgen is a prominent figure in the Vail community. Further, the Plaintiff, also the victim, believes
public access is of great interest to present and future cases that are similar in nature. With regard to
injury to either Borgen or Campbell, it is unlikely Borgen will suffer irreparable injury that has not
already been derived from a string of legal entanglements and other posted information that is
available by conducting an internet search using the term "Bjorn Borgen". Exhibit C shows a
number of existing details whereby Borgen would be subject to scrutiny for his history of dealings
including an SEC ruling against Borgen while he was Chairman and CEO of Founders Asset
Management as well as other legal pursuits led by Borgen that voluntarily place him prominently in
the spotlight.

                17.     Public interest is heightened by the abuse of power and process as is exhibited
with the details of this case. The Defendant has had a number of legal entanglements that are and
have been available for public consumption on a state and national level. The Plaintiff is a long
standing member of the press. Any blog postings, press releases or conversations with other
members of the media are protected by the First Amendment. Plaintiff has not abused this right at
any time during this court proceeding.

                18.      In Colorado the right of public access to judicial records is governed by
overlapping constitutional, statutory, and common-law rules. There is a common law “general
principle of publicity” that court records are presumptively open to the public. For some types of
records, this qualified right is also secured by the First Amendment. Additionally, the Plaintiff has a
First Amendment right to document the this case from a personal, first hand experience by way of
editorial, a blog posting and/or a published manuscript. Written expression as exhibited with the
current blog posting is consistent with the Plaintiff's work history as a journalist.

                19.      The Defendant, Bjorn K. Borgen, is named in a police investigation involving
an assault that took place between the Plaintiff and the Defendant which is referenced through
witness affidavits and depositions in this case. Public interest is already substantiated and should be
protected by this Court. Further, this does not warrant a retaliation by the Defendant to file an
"extortion" claim simply because evidence to support inappropriate behavior by the Defendant exists
and is under investigation. A desire to punish the Plaintiff for engaging in protected activity (i.e.
filing a lawsuit or reporting unlawful behavior to the District Attorneys' Office) and to deter others
from acting similarly (by denying public access to court records) is what makes the Defendant's
motion and suggestions of "extortion" an act of retaliation. See Brissette v. Franklin County Sheriff's
Office, 235 F. Supp. 2d. 63 (d. Mass. 2003).

                20.     The Injunction Will Not Preserve The Status Quo. An entry of the requested
injunctive relief will not preserve the status quo. In fact it will most certainly present to the public
and to the Plaintiff that victims are not protected by the law and the courts. Speaking up against
sexual harassment and assault is a very difficult undertaking for any individual. This case captions
that fact very clearly by the retaliatory behavior on the part of the Defendant and counsel for the
Defendant. Accusations of "extortion" by the Defendant should be met with swift dismissal as not
an ounce of evidence to support such incredulous behavior on the part of the Plaintiff exists and can
only be construed as a litigation tactic by counsel. Exhibit D is the only document submitted to the
Defendant that outlines a settlement proposal in this case which was provided in March 2010. The
settlement included an apology by Borgen as well as distribution of funds described as damages, to
be allocated to a number of specific charitable organizations benefiting women and children. A
response was not received.

                  Campbell respectfully requests the Motion For Temporary Restraining Order, and
Preliminary and Permanent Injunctive Relief be denied. Accordingly, the personal interests of the
Defendant do not outweigh public access or Campbell's right to a fair and just trial. The Defendant
engaged in unlawful activity as deemed illegal under Title VII and evidenced by the Denver Police
Department's investigation and such activity is not restricted as private or protected unless it is
critical to the victim's safety. In this case, the victim, Campbell, believes public interest is paramount
to deterring similar behavior in the future. Further, the only way to improve laws to protect victims
of sexual harassment and assault are to speak up and speak out. Campbell should not be denied this
very important right and privilege if it benefits a greater good.

Respectfully submitted this 16th Day of March 2010.



                                        By:_______________________________________
                                        Candy A. Campbell, Pro Se
                                        1245 Eudora Street
                                        Denver, CO 80220
                                        (720)233-5426
                                        candy@coloradowomen.org
                                 CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing PLAINTIFF'S RESPONSE TO
DEFENDANT'S MOTION FOR TEMPORARY RESTRAINING ORDER, AND PRELIMINARY
AND PERMANENT INJUNCTIVE RELIEF, ENJOINING PLAINITFF TO REMOVE BLOG
POSTINGS FROM THE INTERNET was filed with the Court and served upon the Defendant on this
16th day of April 2010 via United States mail, postage prepaid addressed as follows:


Bjorn K. Borgen
c/o Glenn Merrick
G.W. Merrick & Associates, LLC
5445 DTC Parkway, Suite 912
Greenwood Village, CO 80111




Candy A. Campbell_________________________________________                           ____

								
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