author: Justice KOURLIS

text:
    In the Matter of the REQUESTS FOR INVESTIGATION OF ATTORNEY E.
    No. 01SA404.
    Supreme Court of Colorado, En Banc.
    Oct. 14, 2003.

      Arnold & Porter, Alfred T. McDonnell, Denver, Colorado, Attorneys for Petitioner Attorney E.
    John Gleason, Attorney Regulation Counsel, James S8. Sudler, Assistant Regulation Counsel, Denver, Colorado, Attorneys for Petitioner Attorney Regulation Counsel.
    Ken Salazar, Attorney General, Friedrick C. Haines, Assistant Attorney General, Litigation Section, Denver, Colorado, Attorneys for Respondents Third-Party Movants for Protective Order.
   Justice KOURLIS

delivered the Opinion of the Court.

I. Introduction

In this original proceeding we construe our rules governing the investigative phase of our attorney regulation system. We hold that the attorney, who is the target of the investigation, is a "party" to the investigative proceedings. Because our rules governing discovery by the Attorney Regulation Counsel incorporate certain provisions of the rules of civil procedure, Attorney Regulation Counsel must provide the target attorney with notice of the subpoenas and copies of the subpoenaed documents. In addition, we affirm the Presiding Disciplinary Judge's protective order directing that documents subpoenaed from the FBI by Attorney Regulation Counsel be treated as confidential. We hold that this protective order does not violate the targeted attorney's First Amendment rights. However, on remand we direct the Presiding Disciplinary Judge to modify the terms of the protective order to permit both parties to this disciplinary proceeding, Attorney Regulation Counsel and the targeted attorney, to use the documents to further their respective cases provided neither discloses the existence of the documents themselves nor informs any witnesses that the information came from the confidential FBI documents. However, if either party finds it necessary and essential to their respective cases to disclose to witnesses that certain information comes from the confidential doe-uments, they may apply to the Presiding Disciplinary Judge for a modification of the protective order to permit such disclosure.

Attorney Regulation Counsel ("ARC") was investigating allegations of misconduct regarding the target attorney, "Attorney E." During the investigation, ARC subpoenaed FBI documents. As mandated by the disciplinary and discovery rules of civil procedure, ARC provided copies of those documents to Attorney E as the party to the investigative proceedings. When Attorney E publicly disclosed the documents and implicated privacy interests of third parties named in the doeu-ments, the third parties obtained a protective order from the Presiding Disciplinary Judge ("PDJ"). The PDJ noted that the rules provide that the investigative stage of a disciplinary proceeding is confidential until ARC files a formal, public complaint with the PDJ. Hence, the PDJ reasoned that the subpoenaed FBI documents were also confidential, even to the attorney under investigation. The PDJ concluded that ARC erred by providing the FBI documents to Attorney E and prohibited further disclosure of the documents or their contents by either ARC or Attorney E unless either party obtained the information from an independent source or until any person filed the documents in a public proceeding. Both ARC and Attorney E petitioned this court to have the protective order vacated.

We issued a rule to show cause why the petitioners' relief should not be granted and now make the rule absolute in part and discharge it in part. We affirm the issuance of a protective order to protect the privacy interests of third parties but remand to the Presiding Disciplinary Judge with directions to modify the terms of the protective order consistent with this opinion.

II. Facts and Proceedings Below

Because certain information in this disciplinary proceeding remains subject to a protective order, we provide only those facts which are pertinent to the resolution of this case.

ARC was investigating two matters involving Attorney E. Both matters concerned, in part, statements Attorney E made about two Colorado judges. Specifically, Attorney E asserted that the judges had engaged in criminal misconduct.

During ARC's investigation, a witness stated that the FBI had investigated and developed evidence of the judges' misconduct ARC issued investigative subpoenas to the FBI requesting any reports in that agency's records pertaining to the investigation of the judges pursuant to ARC's authority under C.R.C.P. 251.10(b)(2). Rule 251.10(b)(2) incorporates Rule 45, which in turn incorporates specific discovery provisions of Rules 26 and 30. Following those rules, ARC sent a notice of its record deposition to Attorney E as the "party" to the investigative proceedings. Because Attorney E was also entitled to the documents themselves as a party to the proceedings, ARC forwarded him copies that had been redacted by the FBI.

Although Attorney E's allegations concerned both judges, the primary FBI investigation centered on one of the judges. After receiving the FBI documents describing the investigation of the judge for alleged eriminal misconduct, Attorney E publicly distributed the FBI documents by filing them in various courts of record. Following the public disclosure, the judges filed petitions with the PDJ under C.R.C.P. 251.31 seeking a protective order classifying the FBI documents as "confidential" and limiting Attorney E's use of them.

In response to the judges' petition, the PDJ issued a protective order. In his order, the PDJ ruled that the FBI documents were "confidential" under the various subsections of 251.31. The PDJ reasoned that unless and until ARC files a formal complaint, the investigations of ARC were confidential-even to the target of the investigation. Because Attorney E, as the target of the investigation, was not a "party" to the proceedings until ARC initiated the complaint process, C.R.C.P. 251.10 did not require or authorize ARC to provide Attorney E or anyone else with confidential documents obtained pursuant to the subpoena. Accordingly, the PDJ prohibited not only Attorney E but also ARC from further use of the FBI documents or the information contained within the documents without an order of the court,. The PDJ concluded that the protective order did not prevent any person acquiring the same information from an independent source from disclosing such information or any person from disclosing the information once it was filed in a public proceeding.

In response to the PDJ's protective order, ARC petitioned this court pursuant to C.A.R. 21 and C.R.C.P. 251.1(d) to have it vacated for three reasons. First, ARC argued that the order misconstrued ARC's obligations when an investigative subpoena is issued. Second, it overextended the concept of confidentiality in Rule 251.81. Third, the order hindered ARC's investigation of Attorney E by unduly limiting the purposes to which the FBI documents may be put. Attorney E also filed a motion for leave to intervene in support of ARC's petition, arguing that the protective order violated his First Amendment right to free speech.

We granted ARC's petition under C.A.R. 21 and 251.1(d) and Attorney E's motion to intervene and issued a rule to show cause why the petitioners' relief should not be granted. As a result, the protective order remained in effect but the underlying disciplinary proceedings against Attorney E were stayed pending our resolution of the issues.

We now hold that Attorney E is a "party" to ARC's investigation proceedings and as such, the protective order does not violate his First Amendment rights. As background for our discussion of these issues, we briefly review the investigation stage of the attorney regulation system.

III. The Investigation Stage of the Attorney Regulation System

The investigation of allegations against an attorney proceeds as follows. Once ARC makes the determination to investigate an attorney, it provides the attorney in question with written notice of the nature of the allegations. C.R.C.P. 251.10(a). The attorney must respond to the allegations in writing. Following the attorney's response, the case is assigned to an ARC investigator. Id. Once ARC initiates the investigation, the target attorney has a duty to cooperate and participate throughout the investigation. C.R.C.P. 251.5(d); In re Weisbard, 25 P.3d 24, 28 (Colo.2001).

ARC has broad powers to procure evidence during the investigation. See C.R.C.P. 251.10(b)(2). ARC may issue subpoenas to compel the attendance of witnesses, including the attorney in question, for investigative proceedings. ARC may also issue a subpoena for the production of doeu-ments (a subpoena duces teceum) to obtain pertinent books, papers, documents or any other evidence pertinent to the investigation. While ARC's investigative powers are not subject to all of the rules of civil procedure, they are subject to certain discovery rules because of the express incorporation of C.R.C.P. 45.

C.R.C.P. 45 allows, among other things, ARC to subpoena documents in the hands of a nonparty so long as it follows the formal requirements of the rule. C.R.C.P. 45(b). Those requirements mandate that the person issuing the subpoena must serve a copy of the subpoena, including a complete list of documents and things requested to be provided pursuant to the subpoena, upon all "parties of record." C.R.C.P. 45(c). Rule 45 does not permit a person to subpoena doeu-ments by themselves; rather, the items may be sought only in connection with a subpoena for a deposition. 4 Sheila K. Hyatt & Stephen A. Hess, Colorado Civil Rules Annotated § 45.3 (@rd ed.1998). Rule 45 is also subject to Rule 26, which requires that parties receive copies of all documents that are "relevant to disputed facts" in the proceedings. C.R.C.P. 26(a)(1)(B).

Following the specific discovery rules of civil procedure found in Rules 45, 30, and 26, when ARC issues a deposition subpoena for documents, it serves a copy of the subpoena on the attorney under investigation as the "party" and provides copies of the documents. Such disclosure of documents from ARC to the attorney under investigation is consistent not only with the discovery rules but also with the confidentiality provisions of Rule 251.81, which provide that only the "proceedings" are confidential ARC has also historically interpreted the provisions of Rule 251.10(b)(2), and its predecessor Rule 241.10, to require a similar result.

Rule 241.10 also incorporated Rule 45 and thus the discovery obligations of the disciplinary investigator have not changed. See C.R.C.P. 241.10. The Office of Disciplinary Counsel, the predecessor to ARC, always gave the attorney under investigation notice of any investigatory subpoena related to the attorney's case and copies of any documents obtained in the investigative process. The reasons for this practice were fairness and privacy. For example, ARC frequently subpoenas personal, medical, and business records from an attorney during the investigation. Such records implicate the attorney's right of privacy. See People v. Lamb, 782 P.2d 1216, 1220 (Colo.1987); Benson v. People, 703 P.2d 1274, 1280 n. 7 (Colo.1985). As a matter of long-standing procedure and practice, therefore, when ARC issues document subpoenas, it provides notice of the subpoena and copies of the documents to the attorney under investigation.

Once the attorney under investigation receives such documents, he or she may use them in various ways. For example, the attorney may review them to determine the strength of the case and whether he or she should offer a "conditional admission". C.R.C.P. 251.10(b)(4). A conditional admission occurs when ARC and the attorney under investigation agree upon a conditional admission of misconduct in lieu of a formal complaint when the form of discipline is no greater than a private admonition. Id. Such admissions promote one of the goals of the ~ attorney discipline system: the speedy and informal resolution of minor misconduct.

The accused attorney may also disseminate the documents and the information contained within the documents to the public according to the provisions of Rule 251.31(a) and (b). Under Rule 251.31(b), the confidentiality provisions apply only to the "proceedings." There is no separate confidentiality provision for investigation documents.

The second paragraph of Rule 251.31(a) explicitly allows the attorney under investigation, the complaining witness, and any other witness to the investigative proceedings to disclose the existence of disciplinary proceedings or to disclose any documents or correspondence served on or provided to these persons. C.R.C.P. 251.31(a). Thus, the disciplinary rules explicitly allow the participants in the investigation-the accused attorney, the complaining witness, and any other witness-to disclose the existence of the investigative proceedings and documents before ARC files a formal, public complaint against the accused attorney.

The ability of the accused attorney to disclose documents received from ARC is consistent with the goals of the revised attorney discipline system. Before the enactment of our current rules, the accused attorney could not disclose such documents or the existence of grievance proceedings unless permitted to do so by this court. One of the major goals of the amendments was to make the system of attorney discipline more publicly visible. Thus, the "confidentiality" provisions of the old system were greatly reduced by the new discipline system. The ability of the accused attorneys and witnesses to the investigative proceedings to disclose information if they choose reflects this goal of visibility.

The ability of the accused attorney, the complaining witness, or any other witness to disclose information or documents received from ARC during an investigation, however, is not unlimited. To protect the interests of a complainant, witness, third party, or the accused attorney, any person may petition the PDJ for a protective order upon a showing of good cause. C.R.C.P. 251.31(e). Such orders prohibit the disclosure of information otherwise privileged or confidential and direct that the proceedings be conducted so as to implement the order. Id. Rule 251.31(e) is consistent with the power of the court to issue a protective order under C.R.C.P. 26(c), which precludes dissemination of discovery information, upon good cause shown, to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.

Having reviewed the attorney discipline rules and their incorporation of the discovery rules of civil procedure during the investigation stage, we turn to the application of these rules to this case.

IV. The Attorney Regulation System Authorized and Required Attorney Regulation Counsel to Provide Attorney E with Notice of the Investigative Subpoena and the Subpoena Documents Because Attorney E Is a Party to the Proceeding

Initially, we must determine whether Attorney E is a "party" to the investigative proceedings and thus entitled, as required by the specific discovery provisions of the rules of civil procedure, to notice of its subpoenas and the subpoenaed documents themselves. The PDJ's protective order concludes that he is not a party. The PDJ reasoned that ARC's subpoena for the FBI documents was issued under ARC's investigation powers pursuant to Rule 251.10. Under the confidentiality provisions of Rule 251.31, any documents obtained during an investigation are confidential, even from the attorney under investigation. Thus, even though Rule 251.10 refers specifically to C.R.C.P. 45-which provides the discovery requirements and obligations for parties-the PDJ concluded that the investigative confidentiality rule supercedes the disclosure requirements of Rule 45 and the related discovery provisions.

We disagree. The PDJ's interpretation would render many of the disciplinary rules meaningless and prevent the accused attorney from participating fully in his or her investigation-contrary to the mandates and intent of our attorney regulation system. People v. Cooper, 27 P.3d 348, 354 (Colo. 2001) ("Our fundamental responsibility in interpreting a statute is to give effect to [its] purpose or intent. ..."). Thus, we hold that Attorney E is a party to the investigative proceedings.

The rules authorize and require the actions ARC took in its investigation of Attorney E. Pursuant to its broad investigative powers under Rule 251.10(b)(2), ARC subpoenaed the documents describing the FBI's investigation. ARC reasonably believed that such documents would shed light on its investigation of Attorney E's accusations. Rule 251.10(b)(2) is subject to the discovery requirements of Rule 45, and thus ARC had no choice but to follow the specific provisions of Rule 45. ,

Rule 45 mandates that persons serving subpoenas must provide notice of such subpoenas to all "parties" and incorporates the discovery provisions of Rule 26(@)(1)(B). Rule 26(a)(1)(B) requires that parties receive copies of all relevant documents. Thus, ARC provided Attorney E with notice of its deposition subpoena to the FBI and the doeu-ments produced as a result of that subpoena.

If the attorney under investigation is not entitled to notice and the documents, then the explicit incorporation of Rule 45 into Rule 210.10 becomes meaningless. See Colorado Common Cause v. Coffman, - P.3d -, -, 2003 WL 1562241 at *5 (Colo. App. March 27, 2003). See also State v. Nieto, 993 P.2d 493, 501 (Colo.2000).

Other provisions of the disciplinary rules are similarly superfluous if Attorney E is not entitled to the subpoena documents. For instance, the power of the attorney under investigation to disclose investigative doeu-ments to the public pursuant to Rule 251.3l(a) would be moot if ARC were precluded from providing those documents to the attorney in the first place. Such a result would be contrary to one of the main goals of the recent revisions of the rules: to allow liberal disclosures of information so as to provide a visible attorney discipline process.

The duty of the attorney to participate in his or her own investigation is also hindered significantly if the attorney does not have access to relevant documents until the investigation is completed and ARC files a formal complaint. To cooperate and participate in the investigative process, a respondent attorney must have meaningful access to the investigative documents and the evidence that form the substance of the investigation. Without an exchange of investigative information between ARC and the attorney under investigation, the attorney is not likely to pursue an informal resolution of the case or agree to a conditional admission. Without all of that information, the attorney would not be able to make informed decisions about any admissions. In addition, the attorney would be hindered in presenting arguments and evidence to the ARC investigator that the allegations against him or her were meritless or constituted a minor violation of the rules. The result would be to force matters into the formal proceeding stage when early sharing of information otherwise might result in early resolution at a lesser expense to both parties. Such a result would conflict with one of the goals of the system: an efficient, speedy, and fair resolution of minor misconduct.

Given the plain language of the rules, ARC's present and historic interpretation of those rules, and the implications of a contrary interpretation that would render other rules in our attorney discipline system moot and create a secretive system that discourages informal resolution of discipline claims, we conclude that Attorney E was a "party" in his own investigation. Thus, ARC appropriately followed the specific provisions of Rules 45, 26(a)(1)(B), and 30 by providing the attorney with notice of its subpoena and the documents produced from that subpoena.

V. The Protective Order

Having determined that Attorney E is a party in his own investigation and thus entitled to copies of the FBI documents, we address the terms and provisions of the protective order. Unquestionably, apart from the "confidentiality provisions" of Rule 251.31(a) and (b), the PDJ has the power to issue an order limiting the dissemination of information to protect the interests of third parties for good cause shown. C.R.C.P. 251.3l(e). See also C.R.C.P. 26(c).

Pursuant to C.R.C.P. 251.8l(e), the PDJ held that "good cause" was shown in this case for the issuance of a protective order. The PDJ reasoned that Attorney E's continued dissemination of documents describing the investigation of the judges' alleged misconduct posed a significant and substantial risk to the continued privacy of the two judges, other persons named in the documents, and the judicial system. The PDJ concluded that such a risk to privacy interests was compelling here because the United States Attorney had declined to file charges in response to the FBI investigation.

Neither ARC nor Attorney E appealed the PDJ's "good cause" ruling pursuant to 251.3l1(e) and thus did not in that context provide any record of what the FBI documents contained so we could independently evaluate them. Thus, we must assume for purposes of this case that the "good cause" standard of C.R.C.P. 251.31(e) was satisfied and a protective order was appropriate.

We focus, therefore, on the breadth of the protective order and the specific questions presented by Attorney E and ARC: (1) Whether the order violates Attorney E's First Amendment rights because it is a prior restraint on his speech? and, (2) Whether the order unduly prohibits ARC and Attorney E from prosecuting and defending, respectively, their cases? We turn to a discussion of each issue.

A. Protective Order Does Not Violate Attorney E's First Amendment Rights

Attorney E argues that he is not a party to the investigative proceedings and thus did not receive the documents as a result of discovery. Because he is not a party in the investigative proceedings, he concludes that the order constitutes an ongoing unconstitutional prior restraint on his speech. In the alternative, Attorney E argues that even if he were a party to the investigation, the protective order placed restrictions on information after it was released to the public and such ex post facto prior restraints are unconstitutional, We disagree.

Prior restraints on speech are the most serious and least tolerable infringement on First Amendment rights. Nebraska Press Assn. v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976). As the Supreme Court has frequently held, there is a heavy presumption against the constitutional validity of any prior restraint. New York Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971). A court order that prevents speech from occurring could comprise such a prior restraint. Near v. Minnesota, 283 U.S. 697, 713, 51 S.Ct. 625, 75 L.Ed. 1357 (1931).

However, an order prohibiting parties to a case from disseminating discovered information before it is revealed at a public proceeding is not the kind of "classic prior restraint" that triggers exacting First Amendment serutiny. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984); Bowlen v. District Court, 733 P.2d 1179, 1182-83 (Colo.1987). As the Supreme Court held in Seattle Times, such parties do not have an unrestrained right to disseminate information that they obtained only through the processes of our liberal discovery system. Seattle Times, 467 U.S. at 31, 104 S.Ct. 2199.

In Seattle Times, the defendant newspaper wanted to publish financial information it obtained through discovery about the plaintiff, a religious organization. The plaintiff obtained a protective order under the "good cause" standard of Rule 26 under the Washington Rules of Civil Procedure because it alleged that publishing such information would adversely affect their membership and subject them to harassment. Id. at 22-27, 104 S.Ct. 2199. The United States Supreme Court unanimously upheld the protective order and rejected the defendant's First Amendment challenge.

As background to its unanimous ruling, the Court described our liberal process of discovery and the interplay between pre-trial protective orders and the First Amendment. The Court explained that discovery rules often allow extensive intrusion into the affairs of both litigants and third parties. For example, as in this case, a litigant can compel a third party to be deposed and to produce tangible evidence. Id. at 30, 104 S.Ct. 2199.

Such discovered information would rarely fall within the classes of unprotected speech. However, even if there is some public interest in knowing about the information, it does not necessarily follow that a litigant has an unrestrained right to disseminate information that has been obtained through pretrial discovery. Id. at 31, 104 S.Ct. 2199.

The Court reasoned that because discovery rules were adopted by the state legislature, the processes therein are a matter of "legislative grace." Id. at 32, 104 S.Ct. 2199. A party has no First Amendment right to access information made available only for purposes of trying his or her case. Thus, "continued court control" over the discovered information in the form of protective orders does not raise the "same specter of government censorship that such control might suggest in other situations." Id.

To reflect the reduced level of First Amendment serutiny applicable to protective orders that limit the dissemination of discovery information, the Court announced a two-part balancing test that weighs the free speech right of litigants against the governmental interest of prohibiting the dissemination of discovery material. The test considers whether the practice in question furthers an important or substantial governmental interest unrelated to the suppression of speech and whether the limitation of First Amendment freedoms is no greater than necessary and essential to the protection of the particular governmental interest involved. Id.

Applying this test, the Supreme Court upheld the protective order at issue because it satisfied the "good cause" requirements of Rule 26.

First, the Court held that Rule 26(c) furthers a substantial governmental interest unrelated to the suppression of speech. Id. at 34. Because of the full disclosure provisions of the rules, it is necessary for the trial court to have authority to issue protective orders. Pretrial discovery has a significant potential for abuse, particularly because it may seriously implicate the privacy interests of third parties. Although Rule 26(c) contains no specific reference to "privacy," the Court explained that privacy interests are implicit in the broad purpose and language of the Rule. Id. at 85 n. 21, 104 S.Ct. 2199. Thus, the government has a substantial interest in preventing abuse of its discovery process under Rule 26 to protect such privacy interests. Id. at 834-35, 104 S.Ct. 2199.

Second, the Court held that the protective order issued pursuant to Rule 26(c) did not limit First Amendment freedoms of the parties to a greater extent than necessary, and that they were essential to the government's interest in the protection of privacy. The order in the case prevented a party from disseminating only information obtained through the discovery process. If the party obtained the same information independently of the court's processes, the order did not preclude the party from disseminating such information. Id. at 34, 86, 104 S.Ct. 2199. The Court concluded that because the protective order at issue was entered on a showing of good cause under Rule 26, was limited to the context of pretrial discovery, and did not restrict the dissemination of the information if gained from other sources, it did not offend the First Amendment. Id. at 37, 104 S.Ct. 2199.

We applied the Seattle Times analysis in Bowlen. 788 P.2d at 1182. In Bowlen, we reviewed a protective order issued by a lower court under the "good cause" standard of C.R.C.P. 26(c). Because the United States Supreme Court held in Seattle Times that the "good cause" showing required under Rule 26 was sufficient to safeguard whatever rights the public possesses in discovery materials, we found it unnecessary to address the extent to which discovery proceedings may implicate the First Amendment. Id. We concluded that even if a matter is of public interest, rather than a private affair between litigants, C.R.C.P. 26(c) and Seattle Times permit the trial court to protect private affairs from public disclosure until the material is admitted in a public proceeding. Id. at 1183.

Following the analysis of Seattle Times and Bowlen, we conclude that the protective order issued in this case pursuant to C.R.C.P. 251.81(e) for "good cause" shown does not offend the First Amendment. Although there may be a legitimate public interest in an FBI investigation of two judges because of their positions as governmental officials, we hold that the two-part balancing test weighs in favor of the protective order.

First, Rule 251.31(e) furthers a substantial governmental interest unrelated to the suppression of speech. Because of the specific disclosure rules that are incorporated into our attorney discipline system, the PDJ must and does have authority to issue orders that protect third-party privacy interests. Seattle Times, 467 U.S. at 34-85, 104 S.Ct. 2199; Bowlen, 788 P.2d at 1188. In this case, the FBI documents obtained by Attorney E solely as a result of the discovery process implicate the type of privacy interests inherent in the broad purpose and language of the Rule. The documents described the FBI's investigation. Such documents clearly implicate the judges' privacy interests and have a significant potential for abuse, particularly in this case where Attorney E is under investigation himself for statements he made against the judges. Thus, the government has substantial interests in preventing Attorney E from further abusing the discovery processes and in protecting the judges' privacy.

Second, the PDJ's protective order did not limit Attorney E's First Amendment freedoms to an extent greater than necessary to protect the judges' privacy interests. The order in the case prevented Attorney E-as a party to the investigative proceedings from disseminating information obtained from the FBI documents only during ARC's pre-complaint stage. Seattle Times, 467 U.S. at 86, 104 S.Ct. 2199. If he obtained the same information outside of his attorney discipline case, the PDJ's order does not preclude him from disseminating such information. Id. at 37, 104 S.Ct. 2199. Thus, we conclude that under both the two-pronged balancing test of Seattle Times and the "good cause" showing required under Rule 251.3l(e), the protective order in this case does not violate Attorney E's First Amendment rights. Bowlen, 788 P.2d at 1188.

We are also not persuaded by Attorney E's ex post facto argument that his First Amendment rights are offended because, even if he is a party to the investigative proceedings and received the FBI documents as a result of discovery, he originally obtained the documents without the restrictions of the protective order.

As the United States Supreme Court held in Seattle Times, a trial court has the power of "continued control" over discovered information and such control does not raise the "same specter of government censorship that such control might suggest in other situations." 467 U.S. at 32, 104 S.Ct. 2199. Such continued control necessarily implies that protective orders may be issued at any time during the discovery process. The trial court is in the best position to weigh fairly the competing needs of litigants and third parties affected by discovery and thus must have substantial latitude to fashion protective orders when the need arises. Seattle Times, 467 U.S. at 36, 104 S.Ct. 2199.

The PDJ may exercise "continued control" and broad discretion over the discovery process and limit Attorney E's use of the FBI documents after he disseminated them. Attorney E received the FBI documents due to the "legislative grace" of the state's discovery provisions. Hence, the state, through the PDJ, may prevent abuse of its discovery process at any point that good cause is shown. Arguably, because of the privacy interests implicated by the FBI documents, ARC should have moved for a protective order prior to its disclosure of the documents to Attorney E. Although ARC failed to take such steps, we find that good cause still exists to prevent Attorney E, as a party to the investigative proceedings, from further disclosure of the FBI documents.

Indeed, the primary case cited by Attorney E in support of his ex post facto argument, Procter and Gamble Co. v. McGraw-Hill Co., 78 F.3d 219 (6th Cir.1996), does not apply here. Procter presents the classic prior restraint issue that requires exacting First Amendment serutiny: whether a court can subject the press, not a party to the litigation, to a prior restraint on publication of discovery material that it lawfully received. Id. at 221. As the Sixth Cireuit explained in striking down the lower court's protective order, such a prohibitive practice is contrary to the First Amendment's guarantee of freedom of the press and is always unconstitutional absent exceptional cireamstances. Id. at 225.

Such is not the case here. Although Attorney E "lawfully received" the discovery information unrestricted, he is a party to the investigative proceedings and thus information he received only through the process of discovery in such proceedings may be properly restricted upon a showing of good cause. C.R.C.P. 251.31(e).

Thus, based upon Seattle Times and Bow-len, we conclude that the protective order in this case does not violate Attorney E's First Amendment rights.

B. The Protective Order Must be Modified Because it Unduly Hinders both ARC and Attorney E's Ability to Further Their Respective Cases

Having addressed the First Amendment issue, we turn to the practical effects of the protective order on the underlying investigation of Attorney E. ARC argues that if the protective order is allowed to stand, it will not be able to use any of the statements made in the FBI documents, or the documents themselves, to question witnesses, or otherwise as a basis for further investigation without further order from the PDJ. Attorney E argues that the protective order precludes him from interviewing or investigating sources of potentially exculpatory evidence without running the risk of being held in contempt for violating the order. We agree with both ARC and Attorney E.

Both parties to these investigative proceedings-ARC and Attorney E-must be able to use the documents in a limited way to prosecute and defend their respective cases even though there exists good cause to protect the pertinent privacy interests. Otherwise, subpoenaed information about the FBI's investigation, clearly relevant to the inquiry into Attorney E's accusations, has no purpose. Consequently, ARC's investigation of Attorney E is unduly hampered because even if it can subpoena certain information, it cannot use it. C.R.C.P. 251.10(b)(@Q). Attorney E, on the other hand, cannot effectively defend his case and participate fully in the investigation, as is his responsibility under the rules. C.R.C.P. 251.5(d). Given the implications of a protective order that prevents both parties from making any use of relevant documents, we conclude that the PDJ must modify the protective order to allow the limited use of the FBI documents by both parties. However, considering the privacy interests of the two judges named in the documents and consistent with the PDJ's oral comments, the parties should not disclose the existence of the documents themselves or inform witnesses that the information comes from FBI documents. To the extent that either party finds it necessary and essential to their respective cases to disclose to witnesses that certain information comes from the confidential documents, they may apply to the PDJ for a modification of the protective order to permit such disclosure. Whether such disclosure is necessary depends upon specific facts presented to the PDJ. By allowing limited use of the documents as needed by the cireumstances of this case, the protective order appropriately will balance the privacy interests of third parties named in the documents with the investigative purposes of our attorney regulation system.

VI. Conclusion

The rule is made absolute in part and discharged in part, and the case is remanded to the Presiding Disciplinary Judge with directions to modify the protective order consistent with this opinion.

Chief Justice MULLARKEY and Justice BENDER did not participate.

      . Justice Bender authored the opinion first announced in this case. The court withdrew that opinion sua sponte. The court then transmitted copies of proposed changes in the opinion to the parties for comment and has taken those comments into account. After the proposed modifications were sent out, Justice Bender recused himself from the case based upon an inadvertent ex parte contact. Justice Kourlis now issues the opinion.

      . These proceedings and the attorney under investigation remain confidential under our disciplinary rules. See C.R.C.P. 251.31.

      . The United States Attorney for the District of Colorado declined the case and the investigation was terminated with no further proceedings.

      . C.R.C.P. 251.10(b)(2) provides in relevant part:
      (b) Procedures for Investigation.
      (2) Procurement of Evidence During Investigation.
      ... In connection with an investigation of allegations made against an attorney ... the Regulation Counsel may issue subpoenas to compel . the production of pertinent ... papers [and] documents, or other evidence in proceedings before the Investigator. All such subpoenas shall be subject to the provisions of C.R.C.P. 45. (emphasis added).
      C.R.C.P. 45 provides in relevant part:
      (b) For Production of Documentary Evidence. A subpoena may also command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein....
      {c) Service .... The party issuing or causing the issuance of the subpoena pursuant to this rule, except in postjudgment proceedings, shall serve a copy of the subpoena ... upon all parties of record .... (emphasis added).
      (d) Subpoena for Taking Depositions; Place of Examination.
      (1) A Deposition subpoena, upon notice to all parties to the action, may require the production of documentary evidence which is within the scope of discovery permitted by Rule 26. (emphasis added).
      C.R.C.P. 26 provides in part:
      (a)(1) Disclosures.... [A] party shall, without awaiting a discovery request, provide to other parties:
      (B) A ... copy of ... all documents ... in the possession, custody, or control of the party that are relevant to disputed facts .... (emphasis added).

      . CRCP. 251.31 provides:
      (a) Availability of Information. Except as otherwise provided by these rules, all records, except the work product, deliberations and internal communications of the Regulation Counsel, the committee, the Presiding Disciplinary Judge, the Hearing Boards, and the Supreme Court shall be available to the public after the committee determines that reasonable cause to believe grounds for discipline exists and the Regulation Counsel files and serves a complaint .... (emphasis added).
      Unless otherwise ordered by the Supreme Court or the Presiding Disciplinary Judge, nothing in these rules shall prohibit the complaining witness, the attorney, or any other witness from disclosing the existence of proceedings under these rules or from disclosing any documents or correspondence served on or provided to those persons. (emphasis added).
      (b) Confidentiality. Before the filing and service of a complaint ... the proceedings are confidential within the Office of Regulation Counsel, the committee, the Presiding Disciplinary Judge, and the Supreme Court, except that the pendency, subject matter, and status of an investigation may be disclosed by the Regulation Counsel if:
      (1) The respondent has waived confidentiality; (2) The proceeding is based upon allegations that include either the conviction of a crime or discipline imposed by a foreign jurisdiction; (3) The proceeding is based on allegations that have become generally known to the public; or
      (4) There is a need to notify another person or organization, including the fund for client protection, to protect the public, the administration of justice, or the legal profession. (emphasis added).
      (e) Protective Orders. To protect the interests of a complainant, witness, third party, or respondent, the Presiding Disciplinary Judge or a Hearing Board, may, upon application of any person and for good cause shown, issue a protective order prohibiting the disclosure of specific information otherwise privileged or confidential .... {emphasis added).

      . The PDJ also concluded that the FBI documents were "confidential" by virtue of the federal Freedom of Information Act, 5 U.S.C. § 552 and the Federal Privacy Act, 5 U.S.C. § 552(a). Because the two judges named in the FBI documents appropriately sought a protective order under C.R.C.P. 251.31(e), we decline to analyze this Colorado disciplinary case under either the Freedom of Information Act or the Federal Privacy Act.

      . C.R.C.P.251.1(d) states:
      (d) Plenary Power of the Supreme Court. The Supreme Court reserves the authority to review any determination made in the course of a disciplinary proceeding and to enter any order with respect thereto, including an order directing that further proceedings be conducted as provided by these Rules.

      . Attorney E filed a Petition for Writ of Certiorari to the United States Supreme Court regarding the PDJ's protective order. The U.S. Supreme Court denied the Petition in June 2002.

      . Colorado's attorney regulation system also includes a formal complaint stage. See C.R.C.P. 251.12, 251.14.

      . For example, disciplinary hearings must be conducted in conformity with the Colorado Rules of Civil Procedure and the Colorado Rules of Evidence. C.R.C.P. 251.18(d).

      . Under CR.C.P. 30, a litigant may depose a third party and compel the production of documents following the requirements of C.R.C.P. 45.

      . This court substantially reorganized and revised the attorney discipline system rules in 1999. One of the important changes was to provide alternatives to discipline to permit the diversion of certain cases of minor misconduct so as to avoid formal complaint proceedings. See C.R.C.P. 251.13.

      . There is no such public disclosure provision for ARC. However, before the filing of a complaint, ARC may disclose the pendency, subject matter, and status of an investigation to the public in four situations:
      (1) The respondent [attorney under investigation] has waived confidentiality;
      (2) The proceeding is based upon allegations that include either the conviction of a crime or discipline imposed by a foreign jurisdiction;
      (3) The proceeding is based on allegations that have become generally known to the public; or
      (4) There is a need to notify another person or organization, including the fund for client protection, to protect the public, the administration of justice, or the legal profession.
      C.R.C.P. 251.31(b).

      . Prior to 1999, it was a disciplinary offense for an attorney to disclose pending grievance proceedings in the absence of an order granting such disclosure. C.R.C.P. 241.24 (1998); People v. Bottinelli, 782 P.2d 746, 751 (Colo.1989) (discussing confidentiality provisions of C.R.C.P. 241.24).

      . The Attorney Regulation System Planning Committee, evaluating changes to the disciplinary rules, reported to this court that the system of attorney discipline in Colorado must meet the major goal of providing a fair, efficient, and visible process to resolve complaints charging attorneys with misconduct. See 1997 Report of the Colorado Attorney Regulation System Planning Committee, Public Hearing, February 23, 1998, 27 Colo. Lawyer 2, 23 (Feb.1998).

      . Although we conclude that the respondent attorney, Attorney E, is a "party" to the investigative proceedings and thus entitled to notice and copies of any subpoenaed documents under the specific provisions of Rules 45, 26, and 30, we do not imply that our rules empower the respondent attorney with the formal discovery powers of a party under the rules of civil procedure during the investigation stage. While Rule 210.10 grants ARC specific investigative powers that must comply with the discovery rules, there exists no similar provision for the accused attorney during the investigation phase.

      . Wash. CR. 26(c) is nearly identical to C.RC.P. 26(c) and requires the same "good cause" showing as does C.R.C.P. 251.31(e).

      . ARC stated that Attorney E gave no warning that he planned to disseminate the FBI documents. Given the nature of the FBI documents and Attorney E's past statements about both judges, ARC could have petitioned the PDJ for a protective order to protect the interest of the judges as "third parties" under CRCP. 251.31(e).

      . We note that in the absence of a protective order, our rules allow the accused attorney to disclose any documents he or she receives during the investigative proceedings. On the other hand, ARC may not publicly disclose such documents unless one of the circumstances listed in Rule 251.31(b) exists. See supra, note 13. ARC may disclose information, documents and correspondence which are not the subject of a protective order as necessary to investigate allegations against the accused attorney.

      . Arguably, the protective order can be read to permit broader use of the documents than either party argues. This interpretation is buttressed by the PDJ's oral comments at the conclusion of the hearing on the protective order:
      [Attorney E's Counsel]: Your Honor, at least partly this would lie-would be a question to Regulatory [sic] Counsel, but I take it, your order as you presently have it in mind would prevent Attorney E from talking to any of the individuals identified in the FBI reports to determine the truth or falsity of the allegations made.
      [PDJ]: If the source of the identity of those individuals is solely from these documents, Z don't think it would preclude [Attorney EJ from talking with them, but it would preclude [Attorney EJ from disclosing the information within the documents.
      [Attorney E's Counsell: Well, if the information within the document is that ... you were involved in a car-theft ring, is that true of false? He can't do that....
      [PDJ]: You can ask the question different ways. Your example, the question could be asked, Are you involved in a car ring? That doesn't disclose any information from the document. But to say, Look, I have these FBI documents in which its alleged that you're in a car ring, are you? That discloses information.


source: Caselaw Access Project

author: Justice COATS

license: Public Domain

text:
    Anne MOYER, Individually and as Personal Representative of the Estate of Maxine Reddy, deceased, and as Representative of the Maxine Reddy Trust, Appellant-Defendant, v. EMPIRE LODGE HOMEOWNERS' ASSOCIATION, a Colorado non-profit corporation, Appellee-Plaintiff.
    No. 02SA220.
    Supreme Court of Colorado, En Banc.
    Oct. 20, 2003.
    Riser, Hart & Trezise, LLC Kathleen Hart Gunnison, Colorado Attorney for Appellant, Defendant.

      Felt, Monson & Culichia, L.L.C. James G. Felt, Steven T. Monson, James W. Culichig, Bradford R. Benning, Colorado Springs, Colorado Attorneys for Appellee-Plaintiff.
   Justice COATS

delivered the Opinion of the Court.

The Moyers, who were the prevailing parties in a dispute with Empire Lodge over water rights, appealed to this court directly from the water court's order denying as untimely their Bill of Costs. The District Court for Water Division No. 2 ruled that by waiting until the conclusion of Empire Lodge's appeal of the judgment in the case to file their Bill of Costs, the Moyers were out of time by some twenty months. Because we hold that the water court did not abuse its discretion in denying the Moyer's Bill of Costs or Motion to Reconsider, the Order is affirmed.

I

In the fall of 1996, Empire Lodge Homeowners' Association filed suit in the water court alleging enlargement of the Moyers' use of a decreed irrigation right, and the Moyers counterclaimed to enjoin Empire Lodge's out-of-priority diversions to its ponds. On March 13, 2000, the water court dismissed Empire Lodge's complaint for lack of standing and issued an injunction in favor of the Moyers. In the same order it awarded costs to the Moyers, and without specifying a time limit, it ordered them to submit a Bill of Costs.

In a motion dated April 6, 2000, the Moy-ers asked that they be allowed until April 28 to file their Bill of Costs. This motion was granted, but on April 25 the Moyers moved for an additional extension of time. This second motion made reference to several pending motions regarding reconsideration of the issues and requested that the Moyers be allowed until June 15, 2000, or three weeks after the court's determination of the pending motions, whichever occurred later, to submit their Bill of Costs. Although this motion for further extension of time was not objected to by Empire Lodge, it was also never granted by the water court.

The pending motions for reconsideration included post-trial motions filed by Empire Lodge as well as a motion by the state engineer to enter his appearance and file a motion for reconsideration of the water court's order and judgment. On May 2, 2000, the court denied Empire Lodge's motions and denied the state engineer's motion for leave to enter his appearance. On June 16, Empire Lodge filed its notice of appeal with this court.

The Moyers did not file their Bill of Costs with the water court until February 25, 2002, two weeks after this court issued its mandate, affirming the water court's judgment. Empire Lodge objected to the Bill of Costs as untimely, and the water court denied it on that basis, without further consideration. It also denied the Moyers' Motion for Reconsideration for the same reasons. The Moyers appealed directly to this court.

IL

As this court has previously recognized, the Uniform Local Rules For All State Water Court Divisions indicate their intent that the Colorado Rules of Civil Procedure, "including the state-wide practice standards set out in C.R.C.P. 121," apply to water court practice and procedure, "[eJxeept as expressly provided in these rules." See Am. Water Dev., Inc. v. City of Alamosa, 874 P.2d 352, 381, (Colo.1994) (quoting introductory note preceding the rules). C.R.C.P. 121, § 1-22, requires a party claiming costs to file a Bill of Costs within 15 days of judgment or "such greater time as the court may allow." Although the water court did not specify an alternate deadline in its original Order and Judgment, in response to the Moyers' first request for extension of time, it expressly ordered that they be granted to and including April 28, 2000, within which to file.

It may well have been within the water court's discretion to grant the Moyers more time had it chosen to do so, see C.R.C.P. 6(b), but even though a timely request was made, it was never granted. Similarly, while Empire Lodge's failure to object may have compromised its ability to complain about the requested extension at a later time, see C.R.C.P. 121, § 1-15(8) (failure to file responsive brief may be considered confession of motion), its failure to object could in no way serve to strip the court of its disceretion to deny the motion or require the court to extend an existing deadline. Even a stipulation of the parties cannot extend time limits set by the court, without its approval. Wilson v. People, 25 Colo. 375, 55 P. 721 (1898); C.R.C.P. 121, § 1-11.

Nor could the mere filing of the Moy-ers' motion to enlarge, whether objected to or not, toll the existing filing deadline until the court acted on the motion. Cf. Lovelace v. Higgins, 220 BR. 1022 (10th Cir. BAP 1998)(filing motion for extension of time did not toll period for appealing nor did motion to extend automatically extend appeal time until court ruled on extension motion). While it is surely within a trial court's discretion to grant a timely motion to enlarge, even after the period to be enlarged has expired, the court's failure to do so, or for that matter, its failure to take action on the motion at all, does not automatically extend an existing deadline. A party seeking an enlargement of time within which to take a required action, delays beyond an as yet unextended deadline at its own peril.

When the Moyers finally filed their Bill of Costs, Empire Lodge objected, and the water court denied the Bill of Costs as untimely. Treating Empire's failure to object to the April 25, 2000 motion for enlargement as a confession of the additional time it requested, the water court found that the Bill of Costs was nevertheless filed 20 months outside the time requested by the Moyers and acquiesced in by Empire. This conclusion followed from the court's understanding of the Moyers' requested delay as referring only to the post-trial motions of Empire Lodge and the state engineer, which the court resolved on May 2; and not the motion to enlarge, itself, which was never explicitly granted or denied. The motion's reference to "Motions pending from all parties regarding reconsideration of the issues," which were also described as matters the Moyers' attorney had already been working on for weeks, could hardly be interpreted to include the motion to enlarge itself. In any event, however, the matter was of little consequence where it was clearly within the water court's discretion to deny the Bill of Costs as untimely, whether or not an opposing party objected to it.

Finally, the Moyers assert that the water court's failure to expressly rule on their motion to enlarge created confusion, excusing their failure to file their Bill of Costs any sooner than they did,. While C.R.C.P. 6(b) permits an act to be done upon a motion to enlarge made after the expiration of the specified period if the failure to act in time was the result of excusable neglect, no such motion was filed in the water court. To the extent that the Moyers' motion to reconsider could be construed as a C.R.C.P. 6(b) motion, despite its failure to expressly reference "excusable neglect" or the rule, it simply failed to allege grounds sufficient to mandate a finding of excusable neglect. See Farmers Ins. Group v. District Court, 181 Colo. 85, 507 P.2d 865 (Colo.1978). Unlike those instances of reliance upon an erroneous court order regarding filing deadlines, which have at times been considered excusable, see, e.g., P.H. v. People, 814 P.2d 909 (Colo.1991); Tyler v. Adams County Dept. of Soc. Servs., 697 P.2d 29 (Colo.1985); Comverse v. Zinke, 635 P.2d 882 (Colo.1981), the mere failure to act on a motion to enlarge, even under the cireumstances of this case, does not necessarily excuse a failure to comply with the court's existing deadline or amount to an abuse of discretion. Cf. Redden v. SCI Colo. Funeral Servs., Inc., 38 P.3d 75 (Colo.2001)(rulings refusing to extend filing deadline reviewed only for abuse of discretion).

HL

Because the Bill of Costs was not filed within the time ordered by the water court and the water court did not abuse its discretion in failing to permit a 20-month late filing, the order of the water court is affirmed.

      . See Empire Lodge Homeowners' Ass'n v. Moyer, 39 P.3d 1139 (Colo.2001).

      . Although we do not comment on the jurisdiction of the court of appeals over appeals such as this, we choose to consider this appeal. See Colorado Ass'n of Public Employees v. Dep't of Highways, 809 P.2d 988, 990 n. 1 (Colo.1991); Thomas v. County Court, 198 Colo. 87, 89-90, 596 P.2d 768, 770 (1979).

      . Of course, nothing in this unremarkable proposition suggests that motions to substantively reconsider a judgment or ruling cannot, under some circumstances, toll the time for appealing that ruling. See Id.; Munden v. Ultra-Alaska Assocs., 849 F.2d 383, 387 (Oth Cir.1988).


author: SUMMERS, J.

text:
    2003 OK 82
    STATE of Oklahoma, ex rel. STATE INSURANCE FUND, Plaintiff/Appellant, v. JOA, INC., d/b/a J & A Peanut Company, Defendant/Appellee.
    No. 96,157.
    Supreme Court of Oklahoma.
    Oct. 7, 2003.
    As Corrected Oct. 8, 2003.

      W. Rogers Abbott, Abbott & Associates, Oklahoma City, OK, for Plaintiff/Appellant.
    Micah D. Knight, Duncan, OK, for Defendant/Appellee.
   SUMMERS, J.

T1 The controversy involves an action brought by the State Insurance Fund against JOA, Inc., d/b/a J & A Peanut Company (JOA) for workers' compensation insurance premiums. The matter went to bench trial in the District Court of Oklahoma County, and the court granted a judgment in favor of defendant JOA. Thereafter JOA filed a motion for attorney's fees and costs based upon 12 0.$.2001 §§ 986 and 941. The State Insurance Fund responded by arguing that sovereign immunity barred any award of attorney's fees against it except when this immunity was removed. The Fund argued that its immunity had been removed for § 941 but not § 986. The District Court granted the motion and awarded JOA $8,763.90 for attorney's fees and costs.

12 The State Insurance Fund appealed the post-judgment order granting attorney's fees and costs. The Court of Civil Appeals, Division I, affirmed the award. The Fund then sought certiorari in this Court.

13 JOA's motion in the trial court for attorney's fees and costs was based upon 12 ©.9.2001 § 986, claiming that the action was based upon an open account, statement of account, or account stated. It also sought in the alternative attorney's fees pursuant to § 941.

The trial court determined that:

... [TJhat the Fund, in filing this lawsuit, was not acting in a governmental; or sovereign capacity. Instead, the Fund was acting in a private or proprietary capacity, in the same manner as any other private insurance company. Therefore, the standard of § 941 is inapplicable to determining whether attorney's fees and costs should be awarded. The Court, however, finds that the Fund was not acting in a frivolous manner or without a reasonable basis in bringing this lawsuit. The Court then accepted the parties stipulation that 12 0.8. § 986 applies in this case. By so stipulating, plaintiff did not waive its objection, overruled by the Court, to the award of fees based on 12 0.8. § 941.

The State Insurance Fund argues on appeal and on certiorari that the trial court committed error by awarding attorney's fees pursuant to § 986 because the Fund possesses sovereign immunity.

T4 Generally, Oklahoma does not allow awarding attorneys fees based upon prevailing party status unless such fees are provided for by statute or by contract. Here the issue presented by the parties is whether either of two attorney's fee statutes, 12 0.8. 2001 §§ 986 or 941, apply in the case. The Fund now argues that § 986 does not apply to the Fund because of the sovereign immunity of the State.

T5 But in the District Court the Fund stipulated that § 986 applied to this controversy. On certiorari JOA argues that the Fund is now attacking its own stipulation, and that it may not do so. JOA argues that this case is different from State of Oklahoma, ex rel. State Insurance Fund v. Great Plains Center, Inc., 2008 OK 79, 78 P.3d 83 in that no stipulation was made by the Fund in that case that § 986 applied. JOA is correct.

16 Generally, stipulations as to facts are binding upon the parties and the courts. State ex rel. Trimble v. City of Moore, 1991 OK 97, n. 14, 818 P.2d 889, 894; Mullins v. Ward, 1985 OK 109, n. 24, 712 P.2d 55, 68. Here we are not presented with a stipulation of fact, but of law. Some limitations exist on stipulations concerning questions of law.

17 Personal and private rights may be waived, but law involving the power or structure of government may not be waived. Commodity Futures Trading Commission v. Schor, 478 U.S. 833, 848-851, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986), (contrasting personal constitutional rights to the separation of powers principle). This rule is followed in Oklahoma where subject matter jurisdiction may not be established by waiver, consent, or stipulation. We need not decide whether the Fund's sovereign immunity claim coincides perfectly with the contours of subject matter jurisdiction. For the purpose of our analysis we treat the Fund's sovereign immunity argument as challenging the trial court's power to act. We thus address the immunity issue.

I. Sovereign Immunity and 12 O.S8. § 941

T8 First, we identify the particular cause of action involved in a controversy, and then determine if immunity bars that type of action. For example, in Sholer v. State ex rel. Dept. of Public Safety, 1995 OK 150, 945 P.2d 469, we explained that an action against D.P.S. to recover unauthorized reinstatement fees was brought as an action for money had and received. Id. at 129, We concluded therein that the action in that case was not in tort, and thus not barred by an immunity established by the Governmental Tort Claims Act. Id. at 115. We thus must examine whether an immunity applies to a particular cause of action.

19 The State Insurance Fund is an "agency" for the purpose of the Governmental Tort Claims Act (51 00.98.2001 § 151 et seq.), and thus possesses sovereign immunity from certain tort actions. Fehring v. State Insurance Fund, 2001 OK 11, ¶ 22, 19 P.3d 276, 283. But sovereign immunity does not bar an action against the State Insurance Fund when the action is based upon the Fund's contractual obligations. See, eg., State Insurance Fund v. Taron, 1958 OK 282, ¶15, 333 P.2d 508; State Ins. Fund v. Feldgreber, 1957 OK 249, 317 P.2d 203, 207. Sholer and Fehring are consistent with the principle that sovereign immunity is not a shield to actions based upon the contractual obligations of a state entity. See U.C. Leasing, Inc. v. State ex rel. State Bd. of Public Affairs, 1987 OK 48, 737 P.2d 1191, 1195.

10 The State Insurance Fund possesses statutory authority to sue and be sued in state courts. Statutory language stating a state entity's ability to "sue and be sued" refers to the power of the agency to prosecute and defend actions in state courts where those actions are not barred by sovereign immunity. Terry v. Edgin, supra, 598 P.2d at 282-288. The "sue and be sued" language does not preclude the government's immunity in certain legal controversies, but rather, makes a specific class of legal controversies cognizable at law. Mustain v. Grand River Dam Authority, 2008 OK 48, 122, 68 P.3d 991, 999.

{111 In the case before us today the State Insurance Fund brought a cause of action that was based upon alleged contractual obligations of the Fund and its insured. Further, the cause of action was expressly authorized by statute. The cause of action is not barred by sovereign immunity.

112 Generally, when a state agency does not possess sovereign immunity with respect to a particular cause of action, then general procedural statutes that apply to that particular cause of action also apply when that action is brought against the state entity. For example, in Sholer v. State ex rel. Dept. of Public Safety, supra, in addition to concluding that the Governmental Tort Claims Act did not apply to a non-tort action brought against a state agency, we also concluded that a general statute of limitations, 12 0.8.1991 § 95 (Second), applied to that non-tort action brought against a state entity. Sholer, 945 P.2d at 474-475.

{13 This concept has also applied when assessing litigation costs. We have said that a state agency must be responsible for the "usual incidents of litigation that fall upon private litigants," and pay costs when the Legislature vests authority in the agency to sue or be sued in the courts of this State. Grand River Dam Authority v. Grand-Hydro, 1941 OK 79, 111 P.2d 488, 489-490. This concept is not unique to actions authorized by the "sue and be sued" statutes in that both the Governmental Tort Claims Act and the Administrative Procedures Act also link an obligation to pay litigation costs to particular types of actions cognizable in the State courts.

I 14 It is correct that in State ex rel. Dept. of Highways v. Marshall, 1974 OK 150, 530 P.2d 1023, 1024, this Court cited a legal encyclopedia for the proposition that statutory authorization for imposition of costs against the State, or one of its agencies, must be express, and it cannot be implied from a general statute relating to costs. However, in Chase v. State ex rel. Dept. of Public Safety, 1990 OK 78, n. 10, 795 P.2d 1048, 1050, we approved a post-decisional order by the Court of Civil Appeals that imposed appeal-related costs upon the Department of Public Safety pursuant to the authority of 12 O.S.1981 §§ 66, 978. In Fehring v. State Ins. Fund, 2001 OK 11, 19 P.3d 276, we noted that we had previously held that § 66 applied to the State Insurance Fund. Id. 2001 OK 11, at 117, 19 P.3d at 281, citing, O.K. Constr. Co. v. Burwell, 1939 OK 248, 185 Okla. 444, 93 P.2d 1092, 1094. Section 66 provides for payment of costs from the funds of the State entity (department) appearing as a party to the action when the costs are taxable against the State upon an adverse decision. The sovereignty of the State Insurance Fund is not lessened by a § 986 attorney's fee imposed as a cost as part of the usual incidents of a particular type of litigation. Grand River Dam Authority v. Grand-Hydro, supra.

{15 Although sovereign immunity does not, as a general principle, bar application of 12 0.8.2001 § 986 to state agencies in the appropriate controversies, the Fund argues that § 941 is the exclusive statute for awarding attorney's fees against a state agency, and this exclusivity bars application of § 986.

1116 Section 986 does not expressly mention actions involving state agencies. It states as follows:

In any civil action to recover on an open account, a statement of account, account stated, note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, unless otherwise provided by law or the contract which is the subject to the action, the prevailing party shall be allowed a reasonable attorney fee to be set by the court, to be taxed and collected as costs.

12 0.8.2001 $ 986.

Section 941 expressly mentions state agencies and it states in pertinent part as follows:

A. The defendant in any civil action brought in any court of this state by any state agency, board, commission, department, authority or bureau authorized to make rules or formulate orders shall be entitled to recover against such state entity court costs, witness fees and reasonable attorney fees if the court determines that the action was brought without reasonable basis or is frivolous. This subsection shall apply to any action commenced on or after October 1, 1982.

12 0.98.2001 $ 941(A), emphasis added.

While this statute expressly mentions state agencies, it does not mention sovereign immunity or other statutes allowing attorney's fees.

117 The argument of the Fund is that the State enjoys a sovereign immunity from paying attorney's fees unless waived to the extent allowed in § 941. Governmental immunity is established by statute. Vander-pool v. State, 1988 OK 82, 672 P.2d 1153, 1157. The Fund must point to some statute that creates this immunity to paying attorney's fees. The Fund relies upon Fehring v. State Insurance Fund, supra. But that case involved sovereign immunity from tort actions and the Governmental Tort Claims Act, § 151 et seq., and an injured worker's claim couched in contract but which was barred by the exclusivity of the remedy afforded employers by the Oklahoma Workers' Compensation Act (WCA). See, Fehring, at ¶¶ 30, 31, 19 P.3d at 285-286. Fehring provides no support for the Fund's claim that it enjoys some type of sovereign immunity in the case before us today.

1 18 The Fund also cites State ex rel. Dept. of Human Services on Behalf of Michael Aaron by McBride v. Perkins, 1995 OK CIV APP 42, 898 P.2d 1019, 1020, in which that court determined that § 941 did not apply to paternity actions brought by the State. Thereafter in 1997 the Legislature amended 10 0.8. § 89.3 so as to make § 941 applicable to paternity actions. The Fund argues that this amendment shows a legislative intent that § 941 was meant to be a limitation on attorney's fee awards against the State.

{19 The 1997 amendment does not support the Fund's position, but rather detracts from it. The Legislature did not amend § 941 so as to make it the only attorney's fee statute applicable to every type of cause of action the State or an agency thereof may bring in a District Court. Rather, the Legislature amended a statute relating to a particular cause of action, and made § 941 applicable to that particular cause of action. Further, the amendment occurred after our opinion in Sholer v. State ex rel. Dept. of Public Safety, supra, where we explained that statute of general application, there a statute of limitations, would apply to an action in the District Court involving a state agency.

120 We follow the plain meaning of a statute except in the rare case when literal construction produces a result demonstrably at odds with legislative intent. Sam-man v. Multiple Injury Trust Fund, 2001 OK 71, 118, 33 P.3d 302, 307. The plain meaning of the language used is that a state agency will be liable for court costs, witness fees and reasonable attorney fees if the court determines that the action was brought without reasonable basis or is frivolous. The plain meaning is that § 941 is a statute of general application, and applies to all actions in the same manner that other statutes of general application also apply to state agencies when they are properly before a District Court. No language in § 941 states that other general or specific statutes on attorney's fees are supplanted by § 941, and we decline to judicially create a governmental immunity from attorney's fees as urged by the State Insurance Fund.

II. The Fund's Stipulation and Application of 12 0.8. $ 986

€121 We have addressed and rejected the Fund's arguments that sovereign immunity and the alleged exclusivity of § 941 bar the award of attorney's fees and costs against the Fund. We recently released our opinion in State of Oklahoma, ex rel. State Insurance Fund v. Great Plains Center, Inc., 2008 OK 79, where we held that 12 00.98.2001 § 986 does not apply to an action to enforce an express contract for insurance. Does the Fund's stipulation that § 986 applies to its claim herein nevertheless control this controversy? We conclude that it does.

122 Generally, a public official acts for the public entity the official represents, and "binds" that entity to those acts. See, e.g., D'Yarmett v. School Dist. No. 27, 1919 OK 70, 179 P. 20, 21, (school district was bound by the contract when executed by the proper officers for its use and benefit and with the intention of binding the district). However, a public official performing an act that exceeds his or her authority will not bind the public entity. Carey, Lombard, Young & Co. v. Hamm, 1916 OK 922, 160 P. 878, 878-879. We have said that this is so because persons dealing with public officials are charged with notice of limitations upon the powers of the officials. Indiana Nat. Bank v. State Dept. of Human Services, 1998 OK 101, 857 P.2d 53, 64. The conduct of employees of a state ageney may not create an estoppel so as to subtract from an attribute of the state's sovereign power, as in taxation. State ex rel. Oklahoma Tax Commission v. Emery, 645 P.2d 1048 (Okla.App. 1982), (Approved for publication by Supreme Court]). Cf. Oklahoma City Mun. Imp. Authority v. HTB, Inc., 1988 OK 149, 769 P.2d 131, 135, (state ageney acting in a sovereign capacity may bring a cause of action unimpaired by statutes of limitation).

$23 The act that is before us is a stipulation by counsel for a public entity. Counsel may not waive a constitutional mandate relating to the structure of government, such as the location of a District Court. City of Clinton ex rel. Richardson v. Cornell, 1942 OK 379, 132 P.2d 340, 348. See also, Jones v. Cordell, 1946 OK 135, 168 P.2d 130, 181, (concession of assistant attorney general that Senate Bill was unconstitutional need not be followed by the court)." Thus, both the state agency and counsel for that agency are bound by mandatory law relating to the structure and sovereignty of government as such relates to the particular state agency.

124 In Strelecki v. Oklahoma Tax Commission, 1993 OK 122, 872 P.2d 910, however, we noted a stipulation made by counsel for the Tax Commission on an issue of law together with inconsistent positions on issues of law asserted by the Commission. Id. 872 P.2d at 912, 919-920, 923. In addressing the extent to which the Commission was bound in the litigation by counsel's argument we said the following:

A party on appeal cannot take a position inconsistent with that maintained before a trial tribunal. 'While this court may decide a public-law case on dispositive issues, it will not relieve a party of a solemn commitment to a position argued both below and on appeal unless it is so contrary to the applicable law that it would amount to an ultra vires act. We hence hold that the Commission is bound in this case (1) by the Income Tax Division's pre-Harper [v. Virginia Dept. of Taxation, 509 U.S. 86, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993)] position, below and on appeal, that Taxpayers are entitled to a refund of overpayment if Davis [v. Michigan Dept. of Treasury, 489 U.S. 808, 109 S.Ct. 1500, 108 L.Ed.2d 891 (1989)] is retroactive, and (2) by its procedural posture below that the statutory scheme does allow Taxpayers to seek a timely refund of taxes voluntarily paid under a clearly unconstitutional statute. The Commission now attempts to relitigate the remedial correctness of the refund claims on inconsistent theories. It has lulled these Taxpayers into a false sense of security by inducing their belief that the voluntary overpayments claimed to be due would be refunded if Harper gave retroactive effect to Davis. The Commission will not be heard-at this late hour-to deny lability upon a changed interpretation of the state's remedial regime for refunds. The government stands before us on the footing of an ordinary appellee. It will not receive a more favorable treatment than that afforded other appellate litigants in a similar situation.

Strelecki v. Oklahoma Tax Commission, 1993 OK 122, at 117, 872 P.2d at 919-920, notes omitted.

125 In the present controversy the Fund filed an action against JOA claiming that it was entitled to attorney's fees and costs pursuant to § 986. We explain in State of Oklahoma, ex rel. State Insurance Fund v. Great Plains Center, Inc., supra, that the non-application of § 986 is based upon the nature of the obligation being enforced, i.e., an express contract for insurance. The non-application of § 986 has no connection to the fact that the Fund is a state entity. The Fund stands before us on the footing of an ordinary appellant. It litigated the application of § 986 before the trial court based upon the stipulation that § 986 would apply to the Fund but for § 941. The Fund has pointed to no authority that its counsel acted ultra vires and thus without power to stipulate to the applicability of § 986.

1 26 The trial court made a finding that the Fund stipulated that § 986 applies to this controversy. The Fund does not point to any evidence or argument before the trial court challenging that finding, or make any argument on appeal that the finding of the stipulation is in error. We conclude that the Fund is bound by that stipulation in this case, although we note the result is inconsistent with that established by our opinion in State of Oklahoma, ex rel. State Insurance Fund v. Great Plains Center, Inc., supra.

127 The prevailing party in a § 986 case shall be allowed reasonable attorney's fees. GRP of Texas, Inc. v. Eateries, Inc., 2001 OK 53, ¶ 8, 27 P.3d 95, 98. The Fund does not challenge the reasonableness of the fees awarded. JOA also seeks attorney's fees on appeal. A District Court determines the amount of appeal-related attorney's fees on remand. Id. at ¶ 6, 27 P.3d at 98. The motion for appeal-related attorney's fees filed by JOA is granted.

{28 The Opinion of the Court of Civil Appeals is vacated, the post-judgment order of the District Court awarding attorney's fees is affirmed, the motion by JOA for reasonable appeal-related attorney's fees is granted, and the trial court shall determine the amount of such fees for appeal and cer-tiorari upon remand.

129 OPALA, V.C.J., HODGES, LAVENDER, HARGRAVE, BOUDREAU, WINCHESTER, JJ., concur.

30 WATT, C.J., KAUGER, J., concur in part, dissent in part.

      . The State Insurance Fund is now known as CompSource Oklahoma. Nicholas v. Morgan, 2002 OK 88, n. 1, 58 P.3d 775, 777. See 85 0.$.2001 § 131(e): "(e) The official name of the fund which is known as "The State Insurance Fund" shall be designated in all future references as 'CompSource Oklahoma'. Any references in the Oklahoma Statutes to The State Insurance Fund shall be deemed references to CompSource Oklahoma." The action was commenced in the District Court prior to the change in the name, and we refer to the Fund based upon the name used in this litigation.

      . Natkin & Co. v. Midwesco, Inc., 1993 OK 143, 863 P.2d 1222, 1224; Downing v. First Bank in Claremore, 1988 OK 67, 756 P.2d 1227, 1231. See also State ex rel. Dept. of Transp. v. Norman Indus. Development Corp., 2001 OK 72, 18, 41 P.3d 960, 962-963, (State ex rel. Burk v. City of Oklahoma City, 1979 OK 115, 598 P.2d 659, applies in the absence of a contract or statute).

      . The recently filed opinion in State of Oklahoma, ex rel. State Insurance Fund v. Great Plains Center, Inc., 2003 OK 79, 78 P.3d 83 holds that § 936 does not apply to enforcing a contract of insurance.

      . City of Lawton v. International Union of Police Associations, 2002 OK 1, 119-10, 41 P.3d 371, 375-376; Shaffer v. Jeffery, 1996 OK 47, 17, 915 P.2d 910; Merchants Delivery Service v. Joe Esco Tire Co., 1972 OK 82, 497 P.2d 766, 767; Hobbs v. German-American Doctors, 1904 OK 60, 78 P. 356, (court syllabus).

      . The concept of sovereign immunity has characteristics both consistent and inconsistent with general principles of subject matter jurisdiction. Common law sovereign immunity is similar to subject matter jurisdiction in that immunity acts to bar a court from adjudicating a particular class of causes of action. See, eg., State ex rel. Williamson v. Superior Court of Seminole County, 1958 OK 52, 323 P.2d 979, 981, (District Court was without jurisdiction to proceed when cause of action was barred by sovereign immunity); Berg v. Willibey, 1929 OK 285, 280 P. 456, 459, (court described the class or type of actions for which liability of the State would not then be based); State ex rel. Turpen v. A 1977 Chevrolet Pickup Truck, 1988 OK 38, 753 P.2d 1356, 1359, (subject matter jurisdiction usually refers to a court's adjudicative power over a type or class of controversies). One difference frequently mentioned between sovereign immunity and subject matter jurisdiction is that the former may be waived and the latter may not. College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666, 675, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999), In re Burlington Motor Holdings, Inc., 242 BR. 156, 158-159 (Bkrtcy.D.Del.1999).

      . In State v. Dixon, 1996 OK 15, 912 P.2d 842, we used jurisdiction-style language when we said in a proceeding involving the Governmental Tort Claims Act, 51 0.8. § 151 et seq., that extraordinary writs were appropriate to challenge the subject matter jurisdiction of a district court, and that compliance with a provision of the Governmental Tort Claims Act was necessary to invoke the power of a district court. Id. 912 P.2d at 842, 844. We expressly decline to decide to what extent sovereign immunity acts as a bar to a court's power to act.

      . Consistent with this concept we have said that an employee, as third-party beneficiary of the insurance contract, may enforce the contract against the State Insurance Fund in the Workers' Compensation Court. Muscogee (Creek) Nation v. Smith, 1997 OK 66, ¶ 1, 940 P.2d 498.

      . The CompSource Oklahoma President and Chief Executive Officer possess authority to manage and conduct the business affairs of Comp-Source, and pursuant to that authority they may: "Sue and be sued in all the courts of the state, in all actions arising out of any act, deed, matter or things made, omitted, entered into, done or suffered in connection with CompSource Oklahoma, and administer, manage, or conduct all the business and affairs relating thereto." 85 0.8.Supp.2002 § 133(1).
      The previous version of § 133 stated that the Commissioner of the State Insurance Fund possessed the authority to: "Sue and be sued in all the courts of the State, in all actions arising out of any act, deed, matter or things made, omitted, entered into, done or suffered in connection with the State Insurance Fund, and administer, manage, or conduct all the business and affairs relating thereto." 85 O0.S.1991 § 133(1). See, eg., State Insurance Fund v. Taron, 1958 OK 282, 115, 333 P.2d 508, 513.

      . 85 0.5.2001 § 144:
      If any persons, firm or corporation insured by said State Insurance Fund shall default in the payment required to be made by him to the State Insurance Fund, after due notice his insurance in 'The State Insurance Fund" may be canceled and the amount due from him shall be collected by a civil action against him in the name of "The State Insurance Fund", and the same when collected shall be paid into "The State Insurance Fund", and such insured's compliance with the provisions of this article requiring payments to be made to "The State Insurance Fund" shall date from the time of the payment of such money so collected as aforesaid to "'The State Treasurer" for credit of "The State Insurance Fund".

      . For example, in Rout v. Crescent Public Works Authority, 1994 OK. 85, 878 P.2d 1045, we said that the Legislature had incorporated the applicable general statutes, such as 12 0.S.1991 § 940, governing attorney's fees and costs to actions brought pursuant to the Governmental Tort Claims Act. Id. 878 P.2d at 1050. Cf. Truelock v. City of Del City, 1998 OK 64, 115, 967 P.2d 1183, 1187 (Rout applied).

      . At one time the Oklahoma Administrative Procedures Act did not authorize awarding attorney's fees. Smith v. State ex rel. Dept. of Human Services, 1990 OK 19, n. 1, 788 P.2d 959, 961. It now provides for attorney's fees in the context of proceedings pursuant to 75 O0.S$.2001 § 318. See § 318(D)(1) & (2). See, eg., Shackelford v. Oklahoma Military Dept., 1996 OK CIV APP 13, 919 P.2d 448, 450, (released for publication by order of the Court of Civil Appeals), (court applies attorney's fee provision of § 318).

      . At the time of the trial court order on appeal the substance of 12 § 66 was codified at 12 0.$.2001 § 66(A). Because we affirm the trial court's order we need not address subsequent amendments to § 66. 12 0.$.2001 § 66(A) states:
      § 66. State as a party-Bond not required-Automatic stay-Payment of costs
      A. Whenever an action is filed in any of the courts of this state by the State of Oklahoma or by direction of any department of the state, no bond, including cost, replevin, attachment, garnishment, redelivery, injunction, appeal or other obligation of security shall be required from the state or from any party acting under the direction of the state, either to prosecute, answer, or appeal the action. In case of an adverse decision, such costs as by law are taxable against the state, or against the party acting by its direction, shall be paid out of the funds of the department under whose direction the proceedings were instituted; provided, that the court shall direct the nonprevailing party to pay all costs of the action in the final order of the court.

      . The 2001 version of § 978 has not changed from 1981, and 12 0.$.2001 § 978 states:

        § 978. Costs on appeal
      When a judgment or final order is reversed, the plaintiff in error shall recover his costs, including the costs of the transcript of the proceedings, or case-made, filed with the petition in error; and when reversed in part and affirmed in part, costs shall be equally divided between the parties.

      . In the absence of contrary explicit legislative or constitutional expressions the Attorney General of the State of Oklahoma possesses complete dominion over every litigation in which the A.G. properly appears in the interest of the State. State ex rel. Derryberry v. Kerr-McGee Corp., 1973 OK 132, 516 P.2d 813, 818. This dominion includes the authority to dismiss, abandon, discontinue, or compromise suits brought by the A.G., and to make any disposition of such suits as the A.G. deems best for the interest of the state, provided that the acts taken are without fraud or collusion. Id. 818-819.