DISTRICT COURT, PITKIN COUNTY, COLORADO
Pitkin County Courthouse
506 East Main Street, Suite
300
Aspen, Colorado 81611
Plaintiff:
MARILYN MARKS
v.
Defendant:
KATHRYN KOCH
Attorney for
Plaintiff:
Robert A. McGuire
Robert A. McGuire, Attorney At Law,
LLC
1624 Market Street, Suite 202
Denver, Colorado 80202
COURT USE ONLY
Case Number: 2009CV294
Phone Number:
FAX Number:
E-mail:
Atty. Reg. #:
303-734-7175 Div.: 3 Ctrm.:
303-734-7166
ram@lawram.com
37134
MEMORANDUM OF MARILYN MARKS, PLAINTIFF,
IN RESPONSE TO DEFENDANT’S MOTION TO
DISMISS
This memorandum is submitted on behalf of the
Plaintiff, Marilyn Marks, by and
through
her undersigned counsel, to review the facts and
law establishing that an order granting
dismissal
for failure to state a claim or a judgment on the
pleadings would be improper and that
the
Defendant’s Motion to Dismiss should therefore be denied.
The public records at issue in this case are 2,544
electronic files maintained on a
computer disk by the Defendant (the “TIFF files”).
Each TIFF file is a scanned copy of a
single
ballot cast in the May 5, 2009, Aspen municipal
election. (V. Compl. ¶ 15.) The TIFF files
were
created and saved to disk as part of the vote
tabulation process performed by the Defendant,
her
staff and City contractor, TrueBallot, Inc., on
election night. (Id. ¶¶ 12-15, 25,
32-33.)
Voted portions of all of the TIFF files were
completely or partially shown to the
general
public by the Defendant and her staff on election
night using projector screens. (Id. ¶¶
26-28.)
Many of the projected TIFF files were
simultaneously broadcast on live television, (Id. ¶ 29),
and
a recording of this election night broadcast
remains available for public download over
the
Internet, (Id. ¶ 30). Hundreds of the TIFF files
were also shown separately to
individual
members of the public who were present at a
post-election audit conducted by the Defendant
and
her staff on May 7, 2009. (Id. ¶ 22.) For every
ballot counted on election night, the
Defendant
has also released to the public an individual “data
string” that identifies the vote content
and
rankings that the counting software extracted from
the TIFF file for that individual ballot. (Id.
¶¶
16-18.)
On June 1, 2009, Marilyn Marks, the Plaintiff,
submitted a request to Aspen City
Clerk
Kathryn Koch, the Defendant, seeking to inspect the
TIFF files as public records under the
Colorado Open Records Act (“CORA”), §§ 24-72-100.1
to -502., C.R.S. (V. Compl. ¶ 39.)
The Defendant denied the Plaintiff’s right to
inspect the TIFF files on grounds that
a
ballot preservation law, § 31-10-616(1), C.R.S.,
and the constitutional requirement of secrecy
in
voting, Colo. Const. art. VII, § 8, each prohibited
public inspection of TIFF files. (V.
Compl.
¶¶ 41-48.) When the Plaintiff offered to limit her
inspection to exclude any TIFF files that
the
Defendant reasonably considered to have identifying
marks that could compromise secrecy in
voting, the Defendant continued to refuse the
Plaintiff’s right of inspection, citing again
the
ballot preservation statute. (Id. ¶¶
55-56.)
On August 27, 2009, the Plaintiff gave the
Defendant notice of the Plaintiff’s intention to
apply to this Court under Section 24-72-204(5),
C.R.S., for relief in the form of an
order
directing the Defendant to show cause why the
Defendant should not permit the
Plaintiff’s
inspection of the TIFF files and for injunctive relief. (V. Compl. ¶ 57.)
On October 8, 2009, the Plaintiff filed her
Verified Complaint and Application for
Order
Directing Custodian to Show Cause (the “Verified Complaint”).
On October 16, 2009, the Court conducted a Status
Conference, at which the Court
granted the Plaintiff’s requests for an order to
show cause, for an order scheduling a hearing
on
the order to show cause, and for a preliminary
injunction protecting the TIFF files
from
destruction until the conclusion of this action.
(Tr. Status Conf. at 4-5, 11.) At the
Defendant’s
request, the preliminary injunction was extended to
protect the paper ballots cast in the
May
election as well as the TIFF files. (Id. at 4-5.)
Also at the Status Conference, the
Defendant
informed the Court of her intention to file a
motion to dismiss or a motion for
summary
judgment, (Id. at 6), and the Court accordingly set
deadlines for filings related to the
Defendant’s
proposed motion, (Id. at 14).
On November 6, 2009, the Defendant filed her Motion
to Dismiss. In response, the
Plaintiff now files this Memorandum of Marilyn
Marks, Plaintiff, in Response to
Defendant’s
Motion to Dismiss.
Although the Defendant has styled her Motion to
Dismiss as a C.R.C.P. 12(b)(5) motion
to dismiss for failure to state a claim upon which
relief can be granted, her Memorandum
in
Support of Motion to Dismiss identifies no formal
insufficiency in the Verified
Complaint.
Instead, the Defendant’s argument for dismissal is
based entirely on the assertion of
affirmative
defenses. The Court should deny the Defendant’s
Motion to Dismiss because the Verified
Complaint states a formally sufficient claim under
CORA and because none of the
Defendant’s
asserted defenses entitle the Defendant either to
dismissal for failure to state a claim or
to
judgment on the pleadings.
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.
In her Motion to Dismiss and Memorandum in Support
of Motion to Dismiss, the
Defendant has identified no inadequacy in the
Verified Complaint that renders the
Plaintiff’s
pleadings formally insufficient to entitle the
Plaintiff to relief under Section 24-72-204(5),
C.R.S.
On the contrary, the Verified Complaint pleads a
set of material facts that is formally
sufficient
to entitle the Plaintiff to her requested relief.
For these reasons, dismissal of the
Verified
Complaint for failure to state a claim upon which
relief can be granted under C.R.C.P.
12(b)(5)
would be improper and should not be granted.
A. Standard of review for failure to state a claim
under C.R.C.P. 12(b)(5).
The purpose of a motion under C.R.C.P. 12(b)(5) is
to test the formal sufficiency of the
complaint. See Dorman v. Petrol Aspen, Inc., 914
P.2d 909 (Colo. 1996). In evaluating a
motion to dismiss under C.R.C.P. 12(b)(5), a trial
court may consider only those matters stated
in
the complaint, must accept all averments of
material fact as true and must view the allegations
in
the light most favorable to the plaintiff. See Town
of Alma v. AZCO Constr., Inc., 10 P.3d 1256
(Colo. 2000). A complaint is sufficient to
withstand a motion to dismiss if the plaintiff states
a
claim that would entitle the plaintiff to relief.
See Shapiro & Meinhold v. Zartman, 823 P.2d 120
(Colo. 1992).
B. The Verified Complaint is formally sufficient
under C.R.C.P. 12(b)(5).
The averments of material fact made in the Verified
Complaint, when accepted as true
and viewed in the light most favorable to the
Plaintiff as required by Town of Alma, 10 P.3d
at
1256, are sufficient to entitle the Plaintiff to
relief under Section 24-72-204(5), C.R.S. Section
24-72-204(5), C.R.S., provides in pertinent
part:
[A]ny person denied the right to inspect any record covered by [CORA] may
apply to the district court…for an order directing the custodian of such record to
show cause why the custodian should not permit the inspection of such record;
except that, at least three business days prior to filing an application with the
district court, the person who has been denied the right to inspect the record shall
file a written notice with the custodian…informing said custodian that the person
intends to file an application with the district court. Unless the court finds that the
denial of the right of inspection was proper, it shall order the custodian to permit
such inspection….
The averments made by the Plaintiff in the Verified
Complaint track the language of
Section 24-72-204(5), C.R.S., insofar as they
include, among other material facts, the
following:
a. The Plaintiff is a person entitled to inspect
public records under CORA. (V. Compl.
¶¶ 3, 70.)
b. The TIFF files are public records covered by
CORA. (Id. ¶¶ 13-15, 25, 33, 71.)
c. The Defendant is the custodian of the TIFF
files. (Id. ¶¶ 6, 32-33, 72.)
d. The Plaintiff requested to inspect the TIFF
files. (Id. ¶¶ 39, 55.)
e. The Defendant denied the Plaintiff’s request.
(Id. ¶¶ 41-48, 56, 58.)
f. The Plaintiff gave the Defendant at least three
business days notice before filing the
Verified Complaint. (Id. ¶¶ 57,
75.)
Because these averments match the elements of
Section 24-72-204(5), C.R.S., the
Verified Complaint states a claim that entitles the
Plaintiff to relief as required under Shapiro
&
Meinhold, 823 P.2d at 120, and the Verified
Complaint is therefore formally sufficient
to
withstand a C.R.C.P. 12(b)(5) motion to dismiss.
C. Affirmative defenses cannot
support a dismissal under C.R.C.P. 12(b)(5).
The Defendant has nowhere
identified a single necessary allegation that is absent from
the averments set out in the
Verified Complaint. Instead, the Defendant argues for dismissal on
the basis of “two separate
justifications” that she asserts for refusing to allow inspection of
the
TIFF files. (Def.’s Mem. Supp.
Mot. Dismiss 6.) Her first asserted justification is the claim that
allowing inspection of the TIFF
files would violate the constitutional requirement of secrecy in
voting, Colo. Const. art VII, §
8, (Id. at 7-8), and “would be contrary to [a] state statute” under
Section 24-72-204(1)(a),
C.R.S., (Id. at 6). Her second asserted justification is the “defense”
permitted by Sections
24-72-204(6)(a) and 24-72-204(6)(b), C.R.S., that disclosure of the
TIFF
files “would do substantial
injury to the public interest.” (Id.)
These justifications are each
in the nature of affirmative defenses. See State v. Nieto, 993
P.2d 493, 507 (Colo. 2000) (“an
affirmative defense is a legal argument that a defendant, who is
capable of being sued, may
assert to require the dismissal of a claim or to prevail at trial”).
Affirmative defenses cannot
constitute grounds for a C.R.C.P. 12(b)(5) motion to dismiss for
failure to state a claim. See
Denver Parents Ass'n v. Denver Bd. of Educ., 10 P.3d 662 (Colo.
App. 2000). Furthermore, a
plaintiff does not need to anticipate and negate affirmative defenses
in the complaint in order to
survive a motion to dismiss for failure to state a claim. See Davis v.
Bonebrake, 135 Colo. 506
(1957), 313 P.2d 982 (Colo. 1957). Where, as here, a motion to
dismiss for failure to state a
claim is based on an affirmative defense, the motion more accurately
constitutes a motion for
judgment on the pleadings under C.R.C.P. 12(c). See Shaw v. City of
Colorado
Springs, 683 P.2d 385 (Colo. App., 1984); Lin Ron, Inc. v. Mann's World of Arts
&
Crafts,
Inc., 624 P.2d 1343 (Colo. App., 1981).
Because
the Defendant’s justifications for refusing to allow inspection of the TIFF
files
constitute affirmative defenses that do not bear on the
formal sufficiency of the Verified
Complaint
under C.R.C.P. 12(b)(5) and because the Verified Complaint is in fact
formally
sufficient to entitle the Plaintiff to relief under Section
24-72-204(5), C.R.S., dismissal of the
Verified
Complaint under C.R.C.P. 12(b)(5) would be improper, and the Defendant’s Motion
to
Dismiss
should be denied.
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.
The
Plaintiff objects to the Defendant’s assertion of affirmative defenses by
motion.
However,
if the Court chooses to consider the Defendant’s Motion to Dismiss as a
C.R.C.P.
12(c)
motion for judgment on the pleadings under Shaw, 683 P.2d at 385, and Lin Ron,
Inc., 624
P.2d at
1343, and permits the Defendant’s motion itself to serve in effect as a
responsive
pleading,
then the Court should still deny the Defendant’s Motion to Dismiss because
the
affirmative defenses of constitutional infirmity and
contrary state statute are based on erroneous
constructions of the Colorado Constitution and Colorado
statutes and therefore do not entitle the
Defendant
to judgment as a matter of law; and because the defense of “substantial injury
to the
public
interest” under CORA requires the Court to resolve a disputed issue of material
fact,
which
renders judgment on the pleadings inappropriate.
A.
Standard of review for judgment on the pleadings under C.R.C.P 12(c).
Under
Shaw, 683 P.2d at 385, and Lin Ron, Inc., 624 P.2d at 1343, if a motion to
dismiss
for
failure to state a claim is based on an affirmative defense, the motion more
accurately
constitutes a motion for judgment on the pleadings under
C.R.C.P. 12(c). The standard of review
for
evaluating a motion for a judgment on the pleadings is effectively the same as
that used to
evaluate
a motion to dismiss for failure to state a claim. See Abts v. Board of Ed., 622
P.2d 518
(Colo.
1980). In other words, a court must construe the allegations of the pleadings
strictly
against
the movant and the allegations of the party resisting the motion as true. See
Smith v. TCI
Communications, Inc., 981 P.2d 690 (Colo. App. 1999).
Importantly, judgment on the pleadings
under
C.R.C.P. 12(c) is only appropriate if the trial court can determine that the
moving party is
entitled
to judgment as a matter of law merely by inspecting the pleadings and the
controlling
law. See
City and County of Denver v. Qwest Corp., 18 P.3d 748 (Colo. 2001). Where
material
facts are
disputed, judgment on the pleadings is not appropriate. See Koch v. Whitten, 140
Colo.
109
(1959), 342 P.2d 1011 (Colo. 1959); Quiroz v. Goff, 46 P.3d 486 (Colo. App.
2002).
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.
The
Defendant asserts that Article VII, Section 8, of the Colorado Constitution
prohibits
the
public disclosure of “ballots and copies of ballots” cast in an election.
(Def.’s Mem. Supp.
Mot.
Dismiss at 7.) This contention is erroneous both because the public’s inspection
of the
TIFF
files cannot violate secrecy in voting where the underlying ballots themselves
comply with
the
Colorado Constitution and because TIFF files created from underlying ballots
that are
illegally
marked to be personally identifiable should not be constitutionally shielded
from public
disclosure purely as a result of their illegality.
1. The
Colorado Constitution protects as secret the anonymity of ballots,
not their
content.
Section 8
of Article VII of the Colorado Constitution provides in pertinent part
(emphasis
added):
All elections by the people shall be by ballot, and in case paper ballots are required to be
used, no ballots shall be marked in any way whereby the ballot can be identified as the
ballot of the person casting it. The election officers shall be sworn or affirmed not to
inquire or disclose how any elector shall have voted. In all cases of contested election in
which paper ballots are required to be used, the ballots cast may be counted and
compared with the list of voters, and examined under such safeguards and regulations as
may be provided by law. Nothing in this section, however, shall be construed to prevent
the use of any machine or mechanical contrivance for the purpose of receiving and
registering the votes cast at any election, provided that secrecy in voting is preserved.
….
In
interpreting the Colorado Constitution, Colorado courts look to the plain
language of
the text
and will avoid interpretations that produce absurd results. See People v.
Rodriguez, 112
P.3d 693,
696 (Colo. 2005).
Applying
Rodriguez, 112 P.3d at 696, it is readily apparent from the plain language
of
Article
VII, Section 8, that the secret protected by the Colorado Constitution in the
voting
context
is the anonymity of the voter casting a legal ballot. The first sentence of
Article VII,
Section
8, prohibits the marking of ballots in a way that makes them personally
identifiable,
while the
last sentence of the initial paragraph imposes a general requirement that
“secrecy in
voting”
should be preserved using wording that ties the secrecy requirement to the act
of
“receiving and registering” votes, a stage in the voting
process at which a voter casting a ballot
would be
personally identifiable.
The
Defendant argues that the Colorado Constitution requires the actual content of
the
ballot
itself to be kept secret. (Def.’s Mem. Supp. Mot. Dismiss at 7-8.) The Defendant
cites to
a number
of statutory provisions, (see id. at 9-10 [citing § 31-10-504, -505, -607 and
-1514,
C.R.S.]),
and cases, (see id. at 9, 19-21 [citing Taylor v. Pile, 391 P.2d 670 (Colo.
1964);
Littlejohn v. Desch, 121 P.2d 159 (Colo. 1912); Young v.
Simpson, 42 P. 666 (Colo. 1895); and
various
decisions from other States and the federal courts]), which she mistakenly
characterizes
as
supporting her argument that secrecy in voting goes to the “contents or
information contained
on
ballots,” (Def.’s Mem. Supp. Mot. Dismiss at 9).
None of
the Defendant’s cited authorities support her view that the Colorado
Constitution’s conception of secrecy in voting protects any
secret other than the anonymity of the
voter
casting a legal ballot. Each of the Colorado statutory provisions cited by the
Defendant
operates
only to obscure the connection between an identifiable voter and the contents of
his
ballot.
See § 31-10-504, -505, -607 and -1514, C.R.S. None of the cases cited by the
Defendant
suggests
that the right to vote in secret requires the content of a ballot to be kept
secret, rather
than (or
even in addition to) the anonymity of the ballot. See Taylor v. Pile, 391 P.2d
670 (Colo.
1964);
Littlejohn v. Desch, 121 P.2d 159 (Colo. 1912); Young v. Simpson, 42 P. 666
(Colo.
1895).
Indeed, in a decision handed down subsequently to Taylor, 391 P.2d at 670, which
is the
most
recent case that the Defendant cites, the Colorado Supreme Court affirmed that
anonymity,
as
expressed by the Court in the form of the conclusion that, “good faith voters
cannot be
compelled
to disclose how they voted,” is essential to secrecy in voting. Mahaffey v.
Barnhill,
855 P.2d
847, 850 (Colo. 1993).
Furthermore, the Defendant’s interpretation that the
contents of a ballot are themselves
required
to be secret ultimately cannot be correct, since requiring the contents of
ballots to be
secret
would produce the absurdity that votes in an election could not constitutionally
be
counted.
After all, the government is nowhere exempted from the requirements of Article
VII,
Section
8; so if secrecy in voting shields a ballot’s content from the eyes of the
public, then it
must
equally shield that ballot’s content from the eyes of the government, including
from a
government tabulator who can only count votes by accessing
the “content or information
contained
on the ballots.” (Id. at 9.)
Because
the Defendant’s interpretation produces an absurdity and because the plain
language
of Article VII, Section 8, supports the more reasonable conclusion that secrecy
in
voting
protects the anonymity of ballots, rather than their contents, the Defendant’s
interpretation
of the
scope of the constitutional requirement of secrecy in voting must be rejected
under
Rodriguez, 112 P.3d at 696. The plain language of Article
VII, Section 8, is properly interpreted
only to
require that ballots be anonymous, not that their contents should also be
secret.
2.
Secrecy in voting cannot be violated by the public inspection of an
anonymous TIFF file created from an anonymous, unmarked ballot.
Since the
Colorado Constitution requires that “no ballot shall be marked” in a way
that
allows it
to be “identified as the ballot of the person casting it,” Colo. Const. art.
VII, § 8, the
ballots
cast in the Aspen municipal election in May must be presumed to be unmarked (at
least
by the
City of Aspen acting through its employees and agents) and must therefore be
presumed
to be
anonymous. [1] As the TIFF files are simply electronically scanned images of the
voted
ballots,
(V. Compl. ¶ 15), the TIFF files necessarily share the anonymity of the
underlying
ballots
to at least the same extent that the ballots themselves are anonymous. Public
inspection
of the
TIFF files cannot violate secrecy in voting under these circumstances unless the
secrecy
requirement of the Colorado Constitution has already been
violated by the underlying ballots.
[1] If
these presumptions were proven to be false, it would be the duty of this Court
to void the
election
ab initio. See Taylor v. Pile, 154 Colo. 516, 523 (1964).
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.
The
Defendant raises the possibility that some voters may have marked their ballots
in a
way that
makes those ballots personally identifiable. (Def.’s Mem. Supp. Mot. Dismiss at
26-
27). Her
position is not only that illegally marked ballots should benefit from the
constitutional
protection of secrecy in voting, but also that the mere
possibility that some underlying ballots
may be
illegally marked justifies restricting the public’s right of inspection of all
of the TIFF
files.
The Court should reject this argument, since a voter who has illegally marked
his own
ballot
can hardly be justified in relying upon the protection of Article VII, Section
8, when it is
that
voter’s own illegal act that has compromised the anonymity of his ballot.
In
Mahaffey v. Barnhill, 855 P.2d 847, 851 (Colo. 1993), the Colorado Supreme
Court
ruled
that, while a voter cannot be compelled to reveal how he or she voted, the
constitutional
protection of secrecy in voting is nevertheless a privilege
that “is personal, and it is for the voter
to
determine whether to invoke its protection.” Given that it is illegal in
Colorado for a voter to
mark his
own ballot so as to render it identifiable, both for elections held under the
Colorado
Municipal
Election Code of 1965, § 31-10-1517, C.R.S., and for elections held under
the
Uniform
Election Code of 1992, § 1-13-712(1), C.R.S., this Court should hold that a
voter’s
affirmative act of illegally marking a ballot in a way that
makes that ballot personally identifiable
implicitly constitutes a determination by that voter under
Mahaffey not to invoke the protection
of the
constitutional privilege of secrecy in voting. To decide otherwise would create
the
perverse
result that the Colorado Constitution “rewards” illegality by shielding marked
ballots
from
public disclosure while permitting their unmarked counterparts remain subject to
public
inspection. This outcome cannot be countenanced and the
Court should reject it.
Because
the TIFF files do not violate secrecy in voting where the underlying ballots
themselves comply with the Colorado Constitution and
because the personal privilege of secrecy
in voting
should be deemed to be not invoked where the underlying ballots have been
illegally
marked,
the Court should not grant the Defendant a judgment on the pleadings on the
basis of her
defense
that inspection is contrary to the Colorado Constitution’s requirement 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.
The
Defendant argues under Section 24-72-204(1)(a), C.R.S., that the TIFF files
are
exempt
from public inspection because such inspection would be contrary to Section
31-10-
616(1),
C.R.S., which requires the preservation of ballots and election records. (Def.’s
Mem.
Supp.
Mot. Dismiss at 6, 10-12, 14-15.) The Court should reject this affirmative
defense as a
basis for
judgment on the pleadings because TIFF files are not ballots under Section
31-10-
616(1),
C.R.S., and because Section 31-10-616(1), C.R.S., is not sufficiently specific
to create an
exception
to CORA that is “specifically provided by law.”
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.
The
broad, general policy of CORA provides a presumption in favor of disclosure
of
public
records. See City of Westminster v. Dogan, 930 P.2d 585, 589 (Colo. 1997);
Zubeck v. El
Paso
County Retirement Plan, 961 P.2d 597, 601 (Colo. App. 1998). Exceptions to this
broad,
general
policy are to be narrowly construed, subject only to the explicit language of
the
exception. See Sargent Sch. Dist. N o. RE-33J v. Western
Serv., Inc., 751 P.2d 56, 60
(Colo.1988); see also Gumina v. City of Sterling, 119 P.3d
527 (Colo. App. 2004). Furthermore,
the only
permissible exceptions to the right of inspection are those “provided for in the
act itself
or
otherwise specifically provided by law.” Denver Publ’g Co. v. Dreyfus., 184
Colo. 288, 293
(1974),
520 P.2d 104, 107 (Colo. 1974) (emphasis in original).
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.
Section
31-10-616, C.R.S.,2 which the Defendant has asserted is contrary to the
Plaintiff’s right to inspect TIFF files under CORA,
provides in pertinent part:
31-10-616. Preservation of ballots and election records.
(1) The ballots, when not required to be taken from the ballot box for the purpose of
election contests, shall remain in the ballot box in the custody of the clerk until six
months after the election at which such ballots were cast or until the time has expired for
which the ballots would be needed in any contest proceedings, at which time the ballot
box shall be opened by the clerk and the ballots destroyed by fire, shredding, or burial….
(2) The clerk shall preserve all other official election records and forms for at least six
months following a regular or special election.
This
provision makes use of two key defined terms, “ballot” and “election records,”
each
of which
is defined in the Uniform Election Code of 1992, §§ 1-1-101 to 1-13-803, C.R.S.,
as
follows:
(1.7) "Ballot" means the list of all candidates, ballot issues, and ballot questions upon
which an eligible elector is entitled to vote at an election.
§ 1-1-104(1.7), C.R.S.
(11) "Election records" includes but is not limited to accounting forms, certificates of
registration, pollbooks, certificates of election, signature cards, all affidavits, mail-in
voter applications, mail-in voter lists and records, mail-in voter return envelopes, voted
ballots, unused ballots, spoiled ballots, and replacement ballots.
§ 1-1-104(11), C.R.S. (emphasis added).
[2]
Pursuant to Section 2.1 of the Home Rule Charter for the City of Aspen,
Colorado, Aspen’s
elections
are governed by the Colorado Municipal Election Code of 1965, §§ 31-10-101 to
-
1540, C.R.S.
Section
31-10-616(1), C.R.S., requires the clerk to preserve election records,
including
ballots,
for a certain period of time following an election. As part of its requirements,
the statute
specifies
a certain storage method in particular that must be used for storing ballots.
The
Defendant
argues at length that the general intent underlying the particularity of the
statute’s
treatment
of ballots is to protect both their contents and their physical security.
(Def.’s Mem.
Supp.
Mot. Dismiss at 8-12.) However, her content argument has already been shown in
the
constitutional context to be ill-conceived for reasons that
apply equally well in the realm of
statutory
construction, see Section II.B.1., supra, and the Defendant expressly concedes
that her
physical
security argument has no actual application to TIFF files, (Def.’s Mem. Supp.
Mot.
Dismiss
at 11 [“It is certainly true that making ballot images, as opposed to the
ballots
themselves, available for public inspection would not
compromise the physical security of the
original
ballots.”] (emphasis in original)).
The plain
fact is that Section 31-10-616, C.R.S., says nothing at all on its face
about
whether
ballots or election records should be exempted from the right of public
inspection under
CORA. The
Defendant broadly construes the preservation statute to be an exception to
CORA
solely
because it requires that ballots “shall remain in the ballot box,” and because
this
requirement appears superficially to be incompatible with
allowing the physical inspection of
ballots.
If this language constitutes an exception to CORA, then it constitutes only a
tenuous and
indirect
exception at best.
Under the
cases controlling statutory interpretation of exceptions to CORA, in order
for
the
Defendant successfully to assert that Section 31-10-616(1), C.R.S., is a
contrary state statute
that
exempts the TIFF files from public inspection, the Defendant must persuade the
Court, first,
that the
term “ballots” in Section 31-10-616(1), C.R.S., properly includes the TIFF files
even
under
Sargent’s requirement that exceptions to CORA must be narrowly construed; and,
second,
that the
exemption from CORA that is supposedly created by Section 31-10-6161(1), C.R.S.,
is
sufficiently specific to satisfy the requirement of Dreyfus
that exceptions to CORA must be
specifically provided by law. This is a burden of
persuasion that the Defendant cannot bear on
the basis
of a definition of “ballot” that plainly excludes TIFF files, which is used in
a
preservation statute that itself contains no language that
is even plausibly indicative of an intent
to exempt
any specific type of records from public inspection.
3. The
TIFF files cannot properly be construed to be “ballots” under
Section
31-10-616(1), C.R.S.
Under
Sargent, 751 P.2d at 56, the term “ballots” in Section 31-10-616(1), C.R.S.,
must
be
narrowly construed where the term would create an exception to the broad,
general right of
public
inspection under CORA. Because a broader construction of the term “ballot” would
have
the
effect of excluding more records from public inspection under CORA (if the
Defendant’s
theory is
correct that Section 31-10-616(1), C.R.S., exempts “ballots” from public
inspection),
the
narrow construction rule of Sargent dictates that the term, “ballot,” must be
interpreted
strictly,
with reference only to the “explicit language” of the definition. See Sargent,
751 P.2d at
60. In
performing this exercise of statutory construction, the Court should give the
words used in
the
statute their plain and ordinary meaning, in keeping with the underlying
legislative intent, see
id., and
should not strain to give the language other than its plain meaning unless the
result is
absurd,
see City of Westminster v. Dogan Construction Co., 930 P.2d 585, 590 (Colo.
1997).
Where
statutory language is unambiguous, legislative intent is to be gleaned from the
language
itself,
taking into consideration the entire statute. See Sargent, 751 P.2d at 60. Only
where there
is
ambiguity in the plain language may the Court consider the object sought to be
attained and
the
consequences of a particular construction. See Ritter v. Jones, 207 P.3d 954,
957 (Colo.
App.
2009).
Under a
narrow construction of its plain language, the definition of “ballots” set out
in
Section
1-1-104(1.7), C.R.S., cannot properly be understood to include TIFF files.
The
language
of the statute is unambiguous: "‘Ballot’ means the list of all candidates,
ballot issues,
and
ballot questions upon which an eligible elector is entitled to vote at an
election.” § 1-1-
104(1.7),
C.R.S.
This
plain language describes a ballot as the physical list on which voters make
their
marks to
signify their electoral preferences. The definition’s use of the definite
article indicates a
specific
list, namely the one “upon which” voters make their actual voting mark “at” the
election.
The TIFF
files cannot be properly described by this definition because a TIFF file is
obviously
not “the
list … upon which an eligible elector is entitled to vote at an election.” §
1-1-104(1.7),
C.R.S.
(emphasis added). No voter appears to have been given physical access to any
TIFF file
in the
same way that voters were provided with ballots on election day. On the
contrary, the
TIFF
files are electronic computer files that were only created after the close of
voting on
election
night by scanning the voted paper ballots. (V. Compl. ¶¶ 1, 15, 25.) A TIFF file
can no
more be a
“ballot” for purposes of the legal definition in Section 1-1-104(1.7), C.R.S.,
than a
copy of a
driver license can be an actual driver license.
The
Defendant has in fact conceded on the record that substantive differences
exist
between
TIFF files and ballots. She did so at the Status Conference, when she asked the
Court to
extend
the Plaintiff’s requested preliminary injunction to preserve the original
ballots as well as
the TIFF
files because, “we don’t know where this case is going, but we believe that the
ballots
themselves are the best evidence.” (Tr. Status Conf. at 5
(emphasis added).)
Consideration of the substantive provisions of the Colorado
Municipal Election Code that
surround
Section 31-10-616(1), C.R.S., as required under Sargent, 751 P.2d at 60, shows
that
much of
the statute uses the term “ballot” in ways that are rendered non-sensical if the
term is
interpreted to include TIFF files. See, e.g., §§ 31-10-901
to -906 (detailing physical
requirements for paper ballots); § 31-10-803 (specifying
requirements for the use of ballots in
electronic voting); §§ 31-10-606 to -607, -610 (discussing
the use of ballots in voting generally).
The plain
language of Section 1-1-104(1.7), C.R.S., taken together with the
Defendant’s
admission
and giving consideration to the legislative intent gleaned from the use of the
term,
“ballot,”
in the entire statute, all refute the Defendant’s argument that the TIFF files
may be
included
within the meaning of the defined term, “ballot,” under the narrow construction
that
must be
given to the exceptions from CORA under Sargent.
The
Defendant suggests that the decision in City of Westminster v. Dogan, 930 P.2d
585
(Colo.
1997), supports including the TIFF files within the meaning of “ballots” because
the
Court in
Dogan eschewed a literal, form-based approach to construing an exemption
from
CORA’s
right of public inspection where a content-based approach was more consistent
with the
Court’s
understanding of the legislative intent. (Def.’s Mem. Supp. Mot. Dismiss at 12.)
The
Defendant
ignores the fact that the Court only departed from its own rule of narrow
construction
in Dogan
because it found, in interpreting an exemption from CORA that was set out in
CORA
itself,
that a literal, strict construction of the phrase, “letters of reference,”
actually produced a
construction that was “contrary to the ascertainable
legislative purpose” of the exception itself.
Dogan,
930 P.2d at 592 (emphasis added).
Dogan is
completely inapposite here because the plain language of Section
31-10-616(1),
C.R.S.,
is indicative of no “ascertainable legislative purpose” whatsoever to do
anything more
than
subject literal ballots to a particularly specified method of storage for the
sole purpose of
preservation and safekeeping. Nothing in Section
31-10-616(1), C.R.S., provides any basis at all
for
discerning the legislative intent to exempt either ballots or other official
election records from
public
inspection except perhaps indirectly. Given the absence of any basis for
perceiving such
intent,
it would turn Dogan completely on its head to treat Section 31-10-616(1),
C.R.S., as a
situation
in which there was “ascertainable legislative” intent for “ballots” to be
affirmatively
and
broadly construed as a specifically referenced exception to public inspection
CORA, instead
of
narrowly construed, as required under Sargent, simply as actual ballots that are
subject to a
particular storage requirement.
Indeed,
if the Court were to accept the Defendant’s content-over-form argument based
on
Dogan,
then one absurd implication that arises from interpreting “ballots” as including
TIFF files
for
purposes of Section 31-10-616(1), C.R.S., is that all of those TIFF files qua
ballots that
temporarily resided in the memory of the City of Aspen’s
tabulating computers on election night
as a part
of the scanning process must be regarded as “ballots” that were required to be
preserved
for six
months under Section 31-10-616(1), C.R.S. The deletion of these TIFF files
from
computer
memory during the course of the vote counting operation and from the
computer
storage
hard drives afterward would therefore both constitute violations of the very
preservation
statute
that the Defendant seeks to rely upon to shield the surviving TIFF files, safely
burned to a
disk,
from the Plaintiff’s right of public inspection.
Even if
the plain language of Section 31-10-616(1), C.R.S., is insufficiently
persuasive
that TIFF
files cannot be deemed to be ballots, this single example of the kind of
unintended
consequences that will result the Defendant’s
interpretation of the term, “ballot,” emphasizes
why the
Court should refuse to construe the definition of “ballot” so broadly as to
include the
TIFF
files.
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.
Exceptions to CORA that are set out in a contrary state
statute must be “specifically
provided
by law” in that statute. Denver Publ’g Co. v. Dreyfus, 184 Colo. 288, 296
(1974), 520
P.2d 104,
108 (Colo. 1974)(emphasis added). Under Dreyfus, Section 31-10-616(1),
C.R.S.,
cannot be
construed to exempt the TIFF files from the Plaintiff’s right of public
inspection under
CORA
because nothing in the ballot preservation statute specifically addresses either
TIFF files
or the
availability of unavailability of ballots or election records for public
inspection.
In
Dreyfus, the Colorado Supreme Court examined a provision of CORA that
prohibited
the
public inspection of “Medical…data on individual persons, exclusive of coroners’
autopsy
reports,…” Because autopsy reports were specifically carved
out of the types of medical data
that CORA
excluded from public inspection, the Court ruled that, “This is convincing
evidence
of
legislative intent to classify autopsy reports as public records open to
inspection, rather than
directing
the denial of a right of inspection…as is the case with other medical…data.” Id.
Since
the
supposedly contrary laws asserted by the custodian as prohibiting the disclosure
of autopsy
reports
did not actually contain a “specific reference to autopsy reports,” the Colorado
Supreme
Court
ruled that CORA’s legislative intent controlled, and the custodian’s assertion
of contrary
law was
not valid. Id. As the Court stated in opening its discussion of the issue, “The
act
[CORA]
itself requires that exceptions be specifically provided by law.” Id.
The rule
in Dreyfus must apply to Section 31-10-616(1), C.R.S., because the
legislative
intent of
CORA, as expressed in the plain language of the CORA statute, clearly favors
the
public
inspection of “election records” that do not contain certain types of personally
identifiable
information. Specifically, the Colorado Open Records Act,
in Section 24-72-204(8)(a), C.R.S.,
provides
the following:
A
designated election official shall not allow a person, other than the person in
interest, to
inspect
the election records of any person that contain the original signature,
social
security
number, month of birth, day of the month of birth, or identification of that
person,
including electronic, digital or scanned images of a person’s original
signature,
social
security number, month of birth, day of the month of birth, or identification.
“Election
records” for purposes of this provision are defined in Section 1-1-104(11),
C.R.S.
See § 24-72-204(8)(c). This definition consists of a non-exclusive, catch-all
list of
election-related materials. The list expressly includes
ballots and plainly encompasses other
election-related materials such as the TIFF files.
Section
24-72-204(8)(a), C.R.S., prohibits the public inspection of election records
that
contain
certain items of personally identifiable information. It is significant that
CORA prohibits
the
public inspection of only certain election records because Dreyfus reads this as
“convincing
evidence
of legislative intent to classify” the remaining records “as public records open
to
inspection, rather than directing the denial of a right of
inspection.” Dreyfus, 184 Colo. at 296,
520 P.2d
at 108. This application of Dreyfus is consistent with basic canons of
statutory
construction, including the canon of expressio unius est
exclusio alterius, which holds that to
express
or include one thing implies the exclusion of the alternative. In this case,
because CORA
expressly
identifies specific kinds of election records that are not intended to be
subject to public
inspection, the application of expressio unius dictates
that all other kinds of election records are
intended
to be subject to public inspection under CORA.
The fact
that CORA addresses election records establishes its legislative intent for
those
records
to be open to public inspection. Because the TIFF files are scans of anonymous
ballots, [3]
(V.
Compl. ¶ 1), they are properly understood to contain none of the items of
personal
information that would place them within the category of
election records that are exempted
from
public inspection under Section 24-72-204(8)(a), C.R.S. The TIFF files therefore
belong to
the class
of non-personally identifiable election records that the General Assembly must
be
intended
for CORA to make available too public inspection. In light of CORA’s
legislative
intent
that non-personally identifiable election records like the TIFF files should be
available for
public
inspection, the imposition by Section 31-10-616(1), C.R.S., of a ballot
storage
requirement that appears incompatible with the physical
inspection of ballots simply cannot be
regarded
as an exception to CORA that is “specifically provided by law.” Dreyfus, 184
Colo. at
296, 520
P.2d at 108. The exception asserted by the Defendant is too tenuous and indirect
to
overcome
the requirement of Dreyfus that exceptions to CORA based in contrary state must
be
specific
enough to justify the subordination of CORA’s own legislative intent with
respect to the
records
in question.
For the
Defendant to obtain judgment on the pleadings on the basis of asserting that
Section
31-10-616(1), C.R.S., is contrary law, she must persuade the Court, under City
and
County of
Denver v. Qwest Corp., 18 P.3d 748 (Colo. 2001), that by merely inspecting
the
pleadings
and controlling law the Court can arrive at the following two conclusions as a
matter
of law:
First, that the term “ballot” in Section 31-10-616(1), C.R.S., is properly
construed to
[3] This
averment appears to be conceded by the Defendant, (Def.’s Mem. Supp. Mot.
Dismiss at
24),
subject to the caveat that anonymity may nevertheless be compromised where
voters have
illegally
marked their ballots, (Id. at 24, 26-27). The implications of illegally marked
ballots are
addressed in Section II.B.3., infra.
include
TIFF files under the Colorado Municipal Election Code of 1965, §§ 31-10-101 to
-1540,
C.R.S.;
and second, that Section 31-10-616(1), C.R.S., when narrowly construed, see
Sargent
School
District N o. RE-33J v. Western Services, Inc., 751 P.2d 56 (Colo.1988),
specifically
exempts
the TIFF files from public inspection, see Denver Publ'g Co. v. Dreyfus, 184
Colo. 288
(1974),
520 P.2d 104 (Colo. 1974), sufficiently to overcome CORA’s legislative intent
for non-
personally identifiable election records such as the TIFF
files to be open to public inspection.
The
Defendant fails to bear this burden of persuasion, and therefore the Court
should not grant
the
Defendant a judgment on the pleadings on the basis that Section 31-10-616(1),
C.R.S., is a
contrary
state statute.
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.
Finally,
the Defendant has asserted as an affirmative defense, permitted by Sections
24-
72-204(6)(a) and -204(6)(b), C.R.S., the argument that
allowing public inspection of the TIFF
files
would do substantial injury to the public interest. (Def.’s Mem. Supp. Mot.
Dismiss at 6.)
The Court
should deny the Defendant’s Motion to Dismiss on the basis of this defense
because
substantial injury to the public interest is a question of
disputed material fact that is inappropriate
for
judgment on the pleadings.
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.
What
constitutes a substantial injury to the public interest under Section
24-72-204(6),
C.R.S.,
is not defined in CORA. See Bodelson v. Denver Publ’g Co., 5 P.3d 373, 377
(Colo.
App.
2000). However, this catch-all exemption from disclosure is applicable only in
“those
extraordinary situations which the General Assembly could
not have identified in advance.” Id.;
see also
Freedom N ewspapers, Inc. v. Tollefson, 961 P.2d 1150, 1156 (Colo. App.
1998).
Furthermore, the question of whether a substantial injury
to the public interest will result from
the
disclosure of public records is an issue of material fact for the trial court to
resolve. See Civil
Serv.
Comm'n v. Pinder, 812 P.2d 645 (Colo. 1991). The custodian bears the burden of
proving
that a
substantial injury to public interest will occur. See Denver Publishing Co. v.
Dreyfus, 184
Colo.
288, 295 (1974), 520 P.2d 104, 108 (Colo. 1974); Zubeck v. El Paso County
Retirement
Plan, 961
P.2d 597, 601 (Colo. App. 1998).
2. Under
Koch and Quiroz, judgment on the pleadings is not appropriate
where
material facts are in dispute.
As set
out in Section II.A., supra, the standard of review for evaluating a motion for
a
judgment
on the pleadings is effectively the same as that used to evaluate a motion to
dismiss for
failure
to state a claim, see Abts v. Board of Ed., 622 P.2d 518 (Colo. 1980), which
means that
the Court
must construe the allegations of the pleadings strictly against the movant and
the
allegations of the party resisting the motion as true, see
Smith v. TCI Communications, Inc., 981
P.2d 690
(Colo. App. 1999). Where material facts are disputed, judgment on the pleadings
is not
appropriate. See Koch v. Whitten, 140 Colo. 109 (1959), 342
P.2d 1011 (Colo. 1959); Quiroz v.
Goff, 46
P.3d 486 (Colo. App. 2002).
3.
Material facts are in dispute on the question of whether disclosure of the
TIFF
files would do substantial injury to the public interest.
The
Plaintiff has alleged a number of facts in the Verified Complaint that are
material to
the
Court’s determination of whether disclosure of the TIFF files will do
substantial injury to the
public
interest. (V. Compl. ¶¶ 4-5, 20, 22-23, 26-31, 39.) Among the Plaintiff’s
averments are
factual
allegations showing both that the public interest affirmatively favors
disclosure of the
TIFF
files, (Id. ¶¶ 4-5, 20, 22-23, 39), and that the Defendant has already allowed
public
disclosure of the TIFF files in ways that are inconsistent
with the Defendant’s contention that
public
inspection of the TIFF files under CORA will do substantial injury to the public
interest,
(Id. ¶¶
22, 26-31).
The
Defendant not only fails to admit material facts set out by the Plaintiff in
paragraphs
4-5, 20,
22-23, 30 and 39 of the Verified Complaint, but she expressly denies that the
allegations
in these
paragraphs are variously either relevant or material. (Def.’s Mem. Supp. Mot.
Dismiss
at 3-4.)
At the same time, the Defendant advances a number of arguments, unsupported by
any
factual
evidence of her own introduced by affidavit or otherwise, to sustain the
assertion that
public
inspection of the TIFF files will do substantial injury to the public interest.
(Id. at 19-29.)
Under
these circumstances, the Court must consider the material facts that pertain to
the issue of
substantial injury to the public interest to be in
dispute.
Because
the question of whether public inspection of the TIFF files would do
substantial
injury to
the public interest is an issue of material fact under Pinder, 812 P.2d at 645,
and
because
the material facts that bear on this issue are in dispute between the parties, a
judgment
on the
pleadings is inappropriate under Koch, 140 Colo. at 109, 342 P,2d at 1011, and
Quiroz, 46
P.3d at
48. Therefore the Court should not grant the Defendant a judgment on the
pleadings on
the basis
of her affirmative defense that substantial injury to the public interest would
result from
public
inspection of the TIFF files.
CONCLUSION
For the
foregoing reasons, the Plaintiff respectfully requests that the Defendant’s
Motion
to
Dismiss be denied.
Respectfully submitted this 1st day of December, 2009,
By: S/
Robert A. McGuire_______________
Robert A.
McGuire, Reg. No. 37134
1624
Market Street, Suite 202
Denver,
Colorado 80202
(303)
734-7175
(303)
734-7166 Fax
ram@lawram.com
Attorney
for Plaintiff Marilyn Marks
26
CERTIFICATE OF SERVICE
I hereby
certify that on this 1st day of December, 2009, I served a true and correct copy
of
the
foregoing MEMORANDUM OF MARILYN MARKS, PLAINTIFF, IN RESPONSE TO
DEFENDANT’S MOTION TO DISMISS by the method indicated below
to each of the
following:
Attorney
Firm And/Or Address: Method
John
Worcester City Attorney Lexis Nexis File & Serve
City of
Aspen, Colorado
130 S
Galena
Aspen,
Colorado 81611
James R.
True Special Counsel Lexis Nexis File & Serve
City of
Aspen, Colorado
130 S
Galena
Aspen,
Colorado 81611
S/ Robert
A. McGuire_______________
Robert A.
McGuire, Reg. No. 37134
1624
Market Street, Suite 202
Denver,
Colorado 80202
(303)
734-7175
(303)
734-7166 Fax
ram@lawram.com
Attorney for Plaintiff Marilyn Marks