Chaffee County prevails in two cases involving Marilyn Marks

PRESS RELEASE

From: Chaffee County 104 Crestone Ave. P.O. Box 699 Salida, Colorado 81201 (For questions, contact County Attorney Jennifer Davis)

May 26, 2015

CHAFFEE COUNTY PREVAILS IN TWO CASES INVOLVING MARILYN MARKS

(SALIDA, COLORADO)— Chaffee County has prevailed in two separate cases involving Denver-based voter transparency advocate Marilyn Marks and Citizen Center, her nonprofit organization.

The first case involved Marks’ request under the Colorado Open Records Act (CORA) to select and examine voted ballots from the 2010 general election. The County Clerk at the time, Joyce Reno, was concerned that some of the ballots requested by Marks may have been recognizable because some had markings or write-in votes and some precinct and ballot style combinations were unique to only a small number of voters. Clerk Reno was concerned that compliance with the request risked public disclosure of how a particular elector had voted in violation of the Colorado Constitution.

Clerk Reno filed an action with the Chaffee County District Court in 2011, seeking an order that she did not have to comply with Marks’ CORA request. After filing the case, the Colorado General Assembly passed H.B. 12-1036 that clarified the circumstances in which a voted ballot could be disclosed. That law does not permit a member of the public to personally examine voted ballots to determine whether or not they are anonymous or untraceable.

Following passage of the bill, Clerk Reno produced one voted ballot for Marks’ inspection using H.B. 12-1036 as guidance as to what constituted an anonymous, untraceable ballot. Because she received at least a portion of the documents requested, Marks claimed she was entitled to attorney fees under CORA. The District Court disagreed stating that Marks did not obtain a court ruling on the merits in her favor. Instead, Marks received a document she requested without a court order. The District Court also stated that the Clerk’s petition was “apparently reasonable and necessary” because she could not fully comply with Marks’ request without violating Colorado laws protecting the secrecy of the ballot.

Marks appealed to the Colorado Court of Appeals. The Court of Appeals reversed the decision, stating that a district court lacks discretion to deny an award of attorney fees to a requestor who ultimately obtains a requested record. The Court of Appeals reasoned that a court must award costs and attorney fees to the requestor unless the records custodian obtains an order restricting inspection.

Clerk Reno sought and was granted a writ of certiorari with the Colorado Supreme Court to review the Court of Appeals’ decision. In a decision issued on May 26, 2015, the Colorado Supreme Court agreed that attorney fees may be available to a records requestor who receives at least a portion of the requested documents, unless the district court finds that the denial of the right of inspection was proper. The Supreme Court found in this case that the District Court’s order reflects that the Clerk’s denial of Marks’ request was proper and concluded that Marks is not entitled to recover attorney fees.

According to County Attorney Jennifer Davis, “the Supreme Court recognized that Clerk Reno’s actions were not only reasonable, but necessary in order to protect the confidentiality of the ballot.” Davis added, “I am thankful that the County Commissioners have supported the Clerk’s actions in this case and recognized the importance of protecting the citizens of Chaffee County against unwarranted disclosure of certain voted ballots as well as protecting tax dollars against undocumented attorney fees.” Davis noted that Marks was seeking over $130,000 in attorney fees, so this is a “huge win” for County citizens.

The second case was brought by Citizen Center (Marks’ voter transparency organization) against six counties, including Chaffee County, and the Colorado Secretary of State claiming that the defendants did not properly protect the secrecy of voters’ ballots and therefore violated their constitutional rights. The claims against the counties were rejected by a federal district court and a federal appeals court.

Marks sought review by the United States Supreme Court. On April 27, 2015, that Court denied hearing the case. “The decision validates the notion that the clerk’s office acts with the utmost integrity,” stated current County Clerk Lori Mitchell, a sentiment echoed by former Clerk Joyce Reno. “Unfortunately, Marks’ actions in these cases caused a huge disruption to the normal activities of a small county such as Chaffee. I look forward to putting these cases behind us,” added Davis.

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