Aspen Election Transparency: Marks v. Koch

 

7 Documents and 5 Exhibits:

VERIFIED COMPLAINT AND APPLICATION FOR ORDER DIRECTING CUSTODIAN TO SHOW CAUSE

 

KATHRYN KOCHíS MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

Exhibit A  Calvano v. City of Aspen

Exhibit B Ballot image from GrassRootsTV show

Exhibit C Ballot image from GrassRootsTV show

Exhibit D Ballot image from GrassRootsTV show

Exhibit E Ballot image from GrassRootsTV show

MEMORANDUM OF MARILYN MARKS, PLAINTIFF,IN RESPONSE TO DEFENDANTíS MOTION TO DISMISS

 

MOTION FOR LEAVE TO FILE SURREPLY IN OPPOSITION TO DEFENDANTíS MOTION TO DISMISS

 

[PROPOSED] ORDER GRANTING MOTION FOR LEAVE TO FILE SURREPLY IN OPPOSITION TO DEFENDANTíS MOTION TO DISMISS

 

KATHRYN KOCH'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO FILE A SURREPLY

 

SURREPLY IN OPPOSITION TO DEFENDANTíS MOTION TO DISMISS



 OUTLINE OF DOCUMENTS-  CLICK HERE TO GO DIRECTLY TO THE PORTION SELECTED

 

VERIFIED COMPLAINT AND APPLICATION FOR ORDER DIRECTING CUSTODIAN TO SHOW CAUSE

 

Plaintiff, Marilyn Marks, by and through her undersigned counsel, Robert A. McGuire,

Attorney at Law, LLC, for her Complaint against the Defendant, states as follows:

 

NATURE OF THE COMPLAINT AND APPLICATION

 

PARTIES, JURISDICTION, AND VENUE

 

GENERAL ALLEGATIONS

 

THE PUBLIC RECORDS SOUGHT BY THE PLAINTIFF

 

APPLICABLE PROVISIONS OF CORA

 

THE PLAINTIFFíS CORA REQUEST

 

THE DEFENDANTíS DENIALS OF THE PLAINTIFFíS RIGHT OF INSPECTION UNDER CORA

 

DEFENDANTíS INTENTION TO DESTROY RECORDS

 

CLAIM FOR RELIEF

(Application for Order Directing Custodian to Show Cause

under ß 24-72-204(5), C.R.S.)

 

DEMAND FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTIVE RELIEF

 

PRAYER FOR RELIEF

 

VERIFICATION


KATHRYN KOCHíS MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

 

Page 2

 

I. INTRODUCTION

 

II. STANDARD OF REVIEW

Page 3

 

III. MATERIAL FACTUAL ALLEGATIONS

Page 4

Page 5

 

IV. LEGAL ARGUMENTS

Page 7

 

A. State law requires the city clerk to keep secure and secret all ballots, and ballot images, cast in a municipal election.

1. CORA exempts the public inspection of public records that would be contrary to any

state statute.

 

2. The Colorado Constitution and state statutes prohibit the public disclosure of ballots

and ballot images.

Page 8

Page 9

Page 10

 

3. Making ballot images available for public inspection is prohibited by Section 31-10-616(1), C.R.S.

Page 11

 

4. Ballot images should be treated no differently than the original ballots.

Page 12

 

5. The public display of portions of some ballot images on election night cannot

constitute a waiver of votersí rights to a secret ballot.

Page 13

Page 14

 

6. CORA should be read in pari materia with ß31-10-616(1), C.R.S.

Page 15

 

7. The mandatory destruction of cast ballots is not unique to Colorado.

Page 16

Page 17

 

B. Making ballots available for public inspection would do substantial injury to the public interest.

Page 18

 

1. Standard of review.

Page 19

 

2. The Public Interest Ė The right to cast a secret vote.

Page 20

Page 21

 

3. The Public Interest Ė Finality in the results of elections.

Page 22

 

4. The Substantial Injury.

Page 23

Page 24

 

5. The Substantial Injury to the Voters of Aspen.

Page 25

Page 26

 

6. The substantial injury to voters in the last election.

Page 27

 

7. The substantial injury to voters in all future elections.

Page 28

Page 29

Page 30

V. CONCLUSION

Page 31

 

CERTIFICATE OF SERVICE

 

JPW-11/6/2009-142848-G:\john\word\plead\Marks - CORA\memo in suppoprt of motion to dismiss.doc


MEMORANDUM OF MARILYN MARKS, PLAINTIFF, IN RESPONSE TO DEFENDANTíS MOTION TO DISMISS

 

STATEMENT OF THE FACTS

Page 2

 

STATEMENT OF THE CASE

 

ARGUMENT

Page 3

 

I. This Court should not dismiss the Verified Complaint under C.R.C.P. 12(b)(5)

because the Verified Complaint is formally sufficient to state a claim upon which

relief can be granted.

 

A. Standard of review for failure to state a claim under C.R.C.P. 12(b)(5).

Page 4

 

B. The Verified Complaint is formally sufficient under C.R.C.P. 12(b)(5).

Page 5

 

C. Affirmative defenses cannot support a dismissal under C.R.C.P. 12(b)(5).

Page 6

 

II. Even if the Court evaluates the Defendantís Motion to Dismiss as a motion for

judgment on the pleadings under C.R.C.P. 12(c), the Court should still deny the

Defendantís Motion to Dismiss because none of the Defendantís affirmative defenses

entitles the Defendant to a judgment on the pleadings.

Page 7

 

A. Standard of review for judgment on the pleadings under C.R.C.P 12(c).

 

B. The Defendant is not entitled to a judgment on the pleadings on the basis of

Article VII, Section 8, of the Colorado Constitution because the public

inspection of TIFF files does not violate secrecy in voting.

Page 8

 

1. The Colorado Constitution protects as secret the anonymity of ballots,

not their content.

Page 9

Page 10

 

2. Secrecy in voting cannot be violated by the public inspection of an

anonymous TIFF file created from an anonymous, unmarked ballot.

Page 11

 

3. The act of illegally marking a ballot should be interpreted under

Mahaffey as a determination by the voter not to invoke the personal

privilege of secrecy in voting.

Page 12

 

C. The Defendant is not entitled to a judgment on the pleadings on the basis of a

contrary state statute because Section 31-10-616(1), C.R.S., is not properly

construed as contrary to public inspection of the TIFF files.

 

1. Exceptions to the general right of public inspection under CORA are to

be narrowly construed and must be specifically provided by law if set out

in contrary statutes.

Page 13

 

2. Section 31-10-616(1), C.R.S., is nothing more than a records

preservation statute that requires a particular method of storage for

ballots.

Page 14

Page 15

 

3. The TIFF files cannot properly be construed to be ďballotsĒ under

Section 31-10-616(1), C.R.S.

Page 16

Page 17

Page 18

Page 19

 

4. Even if the Court does regard the TIFF files as ballots, Section 31-10-

616(1), C.R.S., still does not create an exception that is sufficiently

specific under Dreyfus to overcome CORAís legislative intent for

election records to be open to public inspection.

Page 20

Page 21

Page 22

 

D. The Defendant is not entitled to a judgment on the pleadings on the basis of

the defense that inspection of the TIFF files will do ďsubstantial harm to the

public interestĒ because material facts are in dispute and therefore judgment

on the pleadings is inappropriate.

 

1. Under Pinder, the question of whether disclosure of a public record will

do ďsubstantial harm to the public interestĒ under Section 24-72-204(6),

C.R.S., is an issue of material fact.

 

2. Under Koch and Quiroz, judgment on the pleadings is not appropriate

where material facts are in dispute.

 

3. Material facts are in dispute on the question of whether disclosure of the

TIFF files would do substantial injury to the public interest.

Page 24

Page 25

 

CONCLUSION

Page 26

 

CERTIFICATE OF SERVICE

 


 

MOTION FOR LEAVE TO FILE SURREPLY IN OPPOSITION TO DEFENDANTíS MOTION TO DISMISS

 

RECITATION OF LEGAL AUTHORITY

CERTIFICATE OF SERVICE

 


 

[PROPOSED] ORDER GRANTING MOTION FOR LEAVE TO FILE SURREPLY IN OPPOSITION TO DEFENDANTíS MOTION TO DISMISS

 


KATHRYN KOCH'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO FILE A SURREPLY

 

I. INTRODUCTION
Page 2
Page 3

 

II. ARGUMENTS

 

 A. Defendant did not refer to any facts not included in previous pleadings.

 

  1. Plaintiff did, in fact, acknowledge that much of Plaintiffís factual allegations in her Complaint are immaterial to the issues in the case at bar.
Page 4

 

  2. Plaintiff did, in fact, acknowledge that certain ballots have identifying information in the form of write-in votes.

 

  3. Plaintiff has, in fact, claimed that the election could be challenged for being unconstitutional.
Page 5

 

  4. Plaintiff has, in fact, argued that ballots that are illegally marked should not be counted.
Page 6
Page 7

 

 B. Defendantís analysis of the four TIFF files does not refer to any facts not included in previous pleadings.
Page 8
Page 9

 

 C. Defendantís argument that legislative facts may be used to support her substantial injury position requires no surreply from the Plaintiff.
Page 10

 

III. CONCLUSION

Page 11
Page 12

 

CERTIFICATE OF SERVICE

 

JPW-12/16/2009-90624-G:\john\word\plead\Marks - CORA\memo opp to surreply.doc


SURREPLY IN OPPOSITION TO DEFENDANTíS MOTION TO DISMISS

I. The Court should disregard the Defendantís mischaracterizations of the Plaintiffís

statements and legal arguments.

 

II. The Defendantís analysis of four TIFF files on the record in the Reply demonstrates

the frivolity of the Defendantís entire position in this case.

 

III. The Defendantís argument that legislative facts may be used to support her

substantial injury position does not overcome Pinder, Koch and Quiroz.

 

CONCLUSION