7 Documents and 5 Exhibits:
VERIFIED COMPLAINT AND APPLICATION FOR ORDER DIRECTING CUSTODIAN TO SHOW CAUSE
KATHRYN KOCH’S 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
MEMORANDUM OF MARILYN MARKS, PLAINTIFF,IN RESPONSE TO DEFENDANT’S MOTION TO DISMISS
MOTION FOR LEAVE TO FILE SURREPLY IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS
KATHRYN KOCH'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO FILE A SURREPLY
SURREPLY IN OPPOSITION TO DEFENDANT’S 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
THE PUBLIC RECORDS SOUGHT BY THE PLAINTIFF
THE DEFENDANT’S DENIALS OF THE PLAINTIFF’S RIGHT OF INSPECTION UNDER CORA
DEFENDANT’S INTENTION TO DESTROY RECORDS
(Application for Order Directing Custodian to Show Cause
under § 24-72-204(5), C.R.S.)
DEMAND FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTIVE RELIEF
KATHRYN
KOCH’S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS
III. MATERIAL FACTUAL ALLEGATIONS
1. CORA exempts the public inspection of public records that would be contrary to any
2. The Colorado Constitution and state statutes prohibit the public disclosure of ballots
4. Ballot images should be treated no differently than the original ballots.
5. The public display of portions of some ballot images on election night cannot
constitute a waiver of voters’ rights to a secret ballot.
6. CORA should be read in pari materia with §31-10-616(1), C.R.S.
7. The mandatory destruction of cast ballots is not unique to Colorado.
B.
Making ballots available for public inspection would do substantial injury to
the public
interest.
2. The Public Interest – The right to cast a secret vote.
3. The Public Interest – Finality in the results of elections.
5. The Substantial Injury to the Voters of Aspen.
6. The substantial injury to voters in the last election.
7. The substantial injury to voters in all future elections.
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 DEFENDANT’S MOTION TO DISMISS
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
A. Standard of review for failure to state a claim under C.R.C.P. 12(b)(5).
B. The Verified Complaint is formally sufficient under C.R.C.P. 12(b)(5).
C. Affirmative defenses cannot support a dismissal under C.R.C.P. 12(b)(5).
II.
Even if the Court evaluates the Defendant’s Motion to Dismiss as a motion
for
judgment
on the pleadings under C.R.C.P. 12(c), the Court should still deny the
Defendant’s
Motion to Dismiss because none of the Defendant’s affirmative defenses
entitles
the Defendant to a judgment on the pleadings.
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.
1. The Colorado Constitution protects as secret the anonymity of ballots,
2. Secrecy in voting cannot be violated by the public inspection of an
anonymous TIFF file created from an anonymous, unmarked ballot.
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.
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
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
3. The TIFF files cannot properly be construed to be “ballots” under
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 CORA’s legislative intent for
election records to be open to public inspection.
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 “substantial harm to the
public interest” 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 “substantial harm to the public interest” 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.
MOTION FOR LEAVE TO FILE SURREPLY IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS
[PROPOSED] ORDER GRANTING MOTION FOR LEAVE TO FILE SURREPLY IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS
KATHRYN KOCH'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO FILE A SURREPLY
A. Defendant did not refer to any facts not included in previous pleadings.
1. Plaintiff did, in fact, acknowledge that much of Plaintiff’s factual
allegations in her Complaint are immaterial to the issues in the case at
bar.
Page
4
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. Defendant’s analysis of the four TIFF files does
not refer to any facts not included in previous pleadings.
Page
8
Page 9
JPW-12/16/2009-90624-G:\john\word\plead\Marks - CORA\memo opp to surreply.doc
SURREPLY IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS
I.
The Court should disregard the Defendant’s mischaracterizations of the
Plaintiff’s
statements and legal arguments.
II.
The Defendant’s analysis of four TIFF files on the record in the Reply
demonstrates
the frivolity of the Defendant’s entire position in this case.
III. The Defendant’s argument that legislative facts may be used to support her
substantial injury position does not overcome Pinder, Koch and Quiroz.