DISTRICT COURT, PITKIN COUNTY,
COLORADO
Pitkin County
Courthouse
506 E. Main,
Suite 300
Aspen, Colorado 81611
Plaintiff(s):
MARILYN MARKS
v.
Defendant(s):
KATHRYN KOCH
? COURT USE ONLY ?
Attorney for
Plaintiff: Case Number: 2009CV294
Robert A.
McGuire
Robert A.
McGuire, Attorney at Law, LLC
1624 Market
Street, Suite 202
Denver, Colorado
80202
Phone Number:
303-734-7175 Div.: 3 Ctrm.:
FAX Number:
303-734-7166
E-mail:
ram@lawram.com
Atty. Reg. #: 37134
SURREPLY IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS
Plaintiff
Marilyn Marks, by and through her undersigned counsel, respectfully submits
this Surreply in
Opposition to Defendant’s Motion to Dismiss in order to respond to incorrect
statements, new
factual references and new legal arguments made and raised for the first time by
the Defendant in
the Defendant’s Reply Memorandum in Support of Motion to Dismiss (the
“Reply”).
I. The Court should disregard the Defendant’s mischaracterizations
of the Plaintiff’s
statements and
legal arguments.
In the Reply,
the Defendant incorrectly attributes to the Plaintiff statements and positions
that the
Plaintiff has not made and does not hold, and which are not evidenced by either
the
pleadings or the record.
First, on page 2
of the Reply, the Defendant states: “…the Plaintiff acknowledges that
much of
Plaintiff’s factual allegations contained in her Complaint are immaterial to the
issues in
the case at
bar…” The Plaintiff has in fact nowhere expressly or impliedly made any such
concession, and
she cannot do so because all of the averments of fact set out in the Verified
Complaint and
Application for Order Directing Custodian to Show Cause (the “Verified
Complaint”) are
material to the Plaintiff’s claim under Section 24-72-204(5), C.R.S.
Second, on page
15 of the Reply, the Defendant states: “…Plaintiff acknowledges here
that certain
ballots have identifying information in the form of write-in votes.” The
Plaintiff
has in fact
never agreed that write-in votes constitute identifying information. The
Plaintiff
twice (on July
20 and September 15) offered to narrow her CORA request in an attempt to
address the
Defendant’s stated concerns about identifiable information on the TIFF files,
(V. Compl. ¶
55), but in doing so she never conceded that the Defendant was correct in
arguing
that ballots
containing write-in votes are personally identifiable.
Third, on page
17, in footnote 6, the Defendant alludes to “the Plaintiff’s continuing
claims of an
unconstitutional election….” The Plaintiff has made no such claims on the record
in this
litigation. Any questions about the constitutionality of Aspen’s May 9, 2009,
election
would in any
event be irrelevant to the CORA question before the Court, except insofar as the
existence of
public controversy would serve as evidence to suggest that the public interest
would
benefit from,
rather than be harmed by, the additional transparency that allowing public
inspection of
the TIFF files would provide.
Fourth, on page
18, the Defendant states: “Plaintiff points out that if some voters at the
last municipal
election marked their ballots in such a way that makes those ballots personally
identifiable, they voted illegally”; and, fifth, on page 19, the Defendant disingenuously attributes
to the Plaintiff
the view that, “all ballots with distinguishing marks are to be considered as
illegal
ballots and not
counted.”
The Plaintiff
has not argued in favor of the position incorrectly attributed to her by the
Defendant in
these two statements. The Plaintiff has never asserted that illegally marked
ballots
are the same
thing as “illegal ballots” that are or should be excluded from vote tabulation.
The
Plaintiff need
not take such a view, because the legal validity of an illegally marked ballot
is
irrelevant to
deciding whether that ballot is subject to inspection as a public record under
CORA.
Furthermore, it
is presumably the Defendant’s duty to exclude illegal ballots from tabulation
regardless of
whether their public inspection is allowed under CORA.
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.
The Reply
presents an extensive discussion of four individual TIFF files that the
Defendant has
referenced for the first time in her Reply. (Def.’s Repl. Mem. Supp. Mot.
Dismiss
at 18-21, Ex.
B-E.) This discussion is intended by the Defendant to “reveal[] how absurd
Plaintiff’s
argument really is.” (Id. at 18-19.) Instead, it showcases the frivolity of the
Defendant’s own
position that TIFF files should be treated as ballots under Section
31-10-
616(1), C.R.S.
The Defendant
has belied nearly all of her substantive arguments by publicly revealing
the contents of
four TIFF files in a public filing. Given the Defendant’s insistence that a copy
of
a ballot is for
all relevant purposes the same thing as a ballot, (Def.’s Repl. Mem. Supp. Mot.
Dismiss at 11),
it is significant that the Defendant apparently perceived no obligation – and
undertook no
effort – to file Exhibits B, C, D or E under seal or to submit them separately
to the
Court for an in camera review. It is particularly difficult to reconcile the Defendant’s casual
handling of
these four exhibits with her insistence that the Plaintiff must not be permitted
to
inspect any TIFF
files, including even those very TIFF files actually pictured in Exhibits B, C,
D
and E.
The Colorado
Court of Appeals has ruled that, where public records are legally accessible
from private
entities, it would be an absurd result for those same records, if in the custody
of a
public entity,
not to be available for inspection under CORA. See Bodelson v. City of
Littleton,
36 P.3d 214, 217
(Colo. App. 2001). The Defendant admits that Exhibits B, C, D and E are but
four of the “468
images that are available for public inspection by viewing the television show,”
which continues
as of the date of this filing to be available for download from a non-public
entity’s website
on the Internet. (Def.’s Repl. Mem. Supp. Mot. Dismiss at 3.)
The Defendant’s
case is based on the untenable claim that the Plaintiff’s inspection of
ballot images
violates Colorado law because copies of ballots held on a disk must be treated
as
ballots, but it
is no violation of law for the Defendant to facilitate the video broadcast of
468
images of those
same ballots. The Defendant only emphasizes the incoherence between her
arguments and
her conduct when she attaches four of those very same images as exhibits to a
pubic legal
filing without observing any of the safeguards against public disclosure that
would
appear to be
required by law under the Defendant’s own legal theory.
III. The Defendant’s argument that legislative facts may be used
to support her
substantial injury position does not overcome Pinder, Koch and Quiroz.
The Reply also
presents an extensive discussion of legal authorities that the Defendant
has referenced
for the first time in her Reply. This discussion is intended by the Defendant to
persuade the Court to rely upon legislative facts asserted by motion as a substitute for facts
submitted by
affidavit or alleged in any responsive pleading. (Def.’s Repl. Mem. Supp. Mot.
Dismiss at
21-26.)
Regardless of
whether the Court may consider legislative facts in determining whether
inspection of
TIFF files would do substantial harm to the public interest under Section
24-72-
204(6), C.R.S.,
the Defendant’s assertion that judicial notice of her adduced legislative facts
will
“preclude any
argument from the Plaintiff that there are material facts in dispute in the case
at
bar,” (Id. at
21), is entirely specious. None of the new legal authorities cited by the
Defendant in
her Reply
suggests that legislative facts ever displace consideration of those material
facts
otherwise
alleged by the parties in the pleadings, or indeed can do anything more than
supplement the
facts alleged by the parties.
Given that the
Plaintiff has alleged facts that are material to determining whether
substantial
injury to the public interest will occur, (V. Compl. ¶¶ 4-5, 20, 22-23, 26-31,
39); given
that this
determination for CORA purposes is a question of material fact, see Civil Serv.
Comm'n
v. Pinder, 812
P.2d 645 (Colo. 1991); given that the material facts are disputed between the
parties; and
given that a judgment on the pleadings is not appropriate where material facts
are in
dispute, see
Koch v. Whitten, 140 Colo. 109 (1959), 342 P.2d 1011 (Colo. 1959); Quiroz v.
Goff, 46
P.3d 486 (Colo.
App. 2002), it would be improper for the Court to grant a judgment for the
Defendant on the
grounds of substantial injury to the public interest. The Defendant’s assertion
of legislative
facts weighing in her favor is irrelevant to the disposition of the Defendant’s
Motion to
Dismiss.
For the
foregoing reasons and those set forth in the Memorandum of Marilyn Marks,
Plaintiff, in
Response to Defendant’s Motion to Dismiss, the Plaintiff respectfully requests
that
the Defendant’s
Motion to Dismiss be denied.
Respectfully
submitted this 11th 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
CERTIFICATE OF SERVICE
I hereby certify
that on this 11th day of December, 2009, I served a true and correct copy of
the foregoing
SURRELY IN OPPOSITION 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
This Web Page Created with PageBreeze Free HTML Editor