Marks v. Koch

• Decision Date: 29 September 2011
• Docket Number: No. 10CA1111.,10CA1111.
• Citation: 284 P.3d 118
• Parties: Marilyn MARKS, a resident of the City of Aspen, Colorado, Plaintiff–Appellant, v. Kathryn KOCH, Clerk of the City of Aspen, Colorado, Defendant–Appellee.
• Court: Colorado Court of Appeals

284 P.3d 118

Marilyn MARKS, a resident of the City of Aspen, Colorado, Plaintiff–Appellant,

v.Kathryn KOCH, Clerk of the City of Aspen, Colorado, Defendant–Appellee.

No. 10CA1111.

Colorado Court of Appeals, Div. III.

Sept. 29, 2011.

Robert A. McGuire, Attorney at Law, LLC, Robert A. McGuire, III, Denver, CO, for Plaintiff–Appellant.

John P. Worcester, City Attorney, James R. True, Special Counsel, Aspen, CO, for Defendant–Appellee.

Opinion by Judge FURMAN.

In this proceeding under the Colorado Open Records Act (CORA), sections 24–72–200.1 to –206, C.R.S.2011, plaintiff, Marilyn Marks, appeals the district court's judgment dismissing her case for failure to state a claim upon which relief can be granted, pursuant to the motion filed by defendant, Kathryn Koch, the City Clerk of Aspen (Clerk). We reverse and remand for further proceedings.

I. The Public Records at Issue

Because of this case's procedural posture, all facts set forth below are derived from Marks's complaint and viewed in the light most favorable to her.

The public records Marks seeks to have released under CORA are 2544 digital copies of ballots cast in the May 2009 Aspen mayoral municipal election, in which Marks was a losing candidate. The copies were created as part of a computerized ballot tabulation system designed for the new instant runoff voting (IRV) procedures of the City of Aspen (City). The IRV procedures were intended to avoid the need for subsequent runoff elections by having voters rank all the candidates and not simply vote for one particular candidate, and then using computer software to determine the winner in a manner simulating an extended runoff voting process.

City engaged TrueBallot, Inc. (TBI), a Maryland corporation, to tabulate the paper ballots under the IRV procedures mandated by City. The new system required Clerk to bring all paper ballots cast by voters to a central location and give them to TBI for tabulation using software designed by TBI to meet the IRV procedures.

TBI's tabulation process had four steps: (1) each paper ballot had to be scanned and the resulting digital photographic image saved as a single computer file in tagged image file format (TIFF) using TBI's software; (2) the software was then used to detect each individual TIFF file's ballot markings to create a raw data string of the voter's rankings of the candidates; (3) the raw data strings were developed into clean data strings; and (4) the clean data strings were interpreted by TBI's software to determine the winner of each race using City's new IRV procedures. Essentially, then, the TIFF files were digital copies of the corresponding paper ballots that voters used to rank the candidates. It is these digital TIFF files that Marks seeks to have released under CORA.

City and TBI took several precautionary steps to assure the integrity of the new computerized tabulation process. They briefly displayed, in whole or in part, each of the 2544 TIFF files on large, public video monitors at the tabulation center at City's city hall; broadcasted selected TIFF files over local television for greater public scrutiny; compared some of the original voter ballots to the data strings those ballots generated, a process open to members of the public; and publicly released both the raw and the clean data strings created by TBI's IRV computer tabulation program.

The record reflects that Clerk, who was then the incumbent clerk for City, was aware of the precautionary measures in place—including the public displaying and broadcasting of the individual TIFF files created from the paper ballots—yet took no action to prevent or alter those measures. Clerk, rather, assisted in the tabulation process by delivering the paper ballots to TBI in a previously agreed-upon manner so that portions of the TIFF files, once created, could be publicly displayed.

Clerk subsequently disclosed that there was a discrepancy between the manual tallies of the paper ballots and TBI's computer-generated data, such that the winner of the mayoral race received more votes than initially stated. Clerk, however, did not publicly disclose this information until nine days after she learned of it—which also happened to be almost a week after the expiration of the statutory deadline to contest the election.

Once Clerk disclosed this information, Marks sought release of all the TIFF files by filing a CORA request with Clerk. Clerk denied Marks' request, asserting that (1) the TIFF files, being duplicates of ballots, were in fact ballots themselves, to be treated in the same manner as the original paper ballots from which they were created; (2) releasing the TIFF files would violate the Colorado Constitution's secrecy in voting requirement, which Clerk interpreted to bar the public disclosure of the contents of ballots; and (3) releasing the TIFF files would also violate section 31–10–616, C.R.S.2011—the ballot storage and destruction provision of the Colorado Municipal Election Code, sections 31–10–101 to –1540, C.R.S.2011—which required Clerk to hold ballots in the ballot box for six months after an election, after which they were to be destroyed.

Marks amended her CORA request to exclude those TIFF files that contained either a write-in candidate or ballot markings Clerk thought might identify a particular voter. Marks' subsequent CORA request was again denied by Clerk for the same reasons as her initial request.

Marks sought a court order to enforce her CORA request. Marks succeeded in obtaining a preliminary injunction preventing the destruction of the TIFF files pending the resolution of her complaint. The preliminary injunction was extended at Clerk's request to include the paper ballots as well as the TIFF files.

The district court granted a motion by Clerk dismissing Marks' complaint for failing to state a claim upon which relief could be granted. The district court accepted Clerk's argument that (1) the TIFF files were ballots; (2) releasing the TIFF files was prohibited by the Colorado Constitution's secrecy in voting provision; and (3) because the TIFF files were ballots, releasing them was prohibited by the Colorado Municipal Election Code's ballot storage and destruction provision.

Marks appeals the district court's judgment dismissing her claim. Both parties also request appellate attorney fees.

II. Standard of Review

In evaluating a motion to dismiss under C.R.C.P. 12(b)(5), we must accept all averments of material fact as true and view the complaint's allegations in the light most favorable to the plaintiff. Dorman v. Petrol Aspen, Inc., 914 P.2d 909, 911 (Colo.1996). Such motions are viewed with disfavor, and “a complaint is not to be dismissed unless it appears beyond doubt that the plaintiff cannot prove facts in support of the claim that would entitle the plaintiff to relief.” Id.

Marks' appeal challenging the dismissal is based on her CORA request seeking release of the TIFF files. In evaluating a claim based on a CORA request, we do so with the understanding that “[o]ur precedent eschews strict attention to form and mandates a content-based inquiry into CORA disclosure exceptions.” Ritter v. Jones, 207 P.3d 954, 959 (Colo.App.2009). Moreover, exceptions to CORA should be narrowly construed. Freedom Newspapers, Inc. v. Tollefson, 961 P.2d 1150, 1154 (Colo.App.1998).

CORA's section 24–72–203(1)(a), C.R.S.2011, states in relevant part that “[a]ll public records shall be open for inspection by any person at reasonable times, except as provided ... by law.” Section 24–72–204, C.R.S.2011, states in relevant part:

(1) The custodian of any public records shall allow any person the right of inspection of such records or any portion thereof except on one or more of the following grounds ...:

(a) Such inspection would be contrary to any state statute.

Marks contends the right to inspect the TIFF files was not contrary to either (1) the secrecy in voting requirement of article VII, section 8 of the Colorado Constitution; or (2) the Colorado Municipal Election Code. We address each contention in turn.

III. The Colorado Constitution's “Secrecy in Voting” Requirement

Marks contends that because the Colorado Constitution's secrecy in voting requirement extends only to protect the identity of a voter and not the content of his or her ballot—assuming the voter's identity could not be discerned from the content of the ballot—it does not bar the latter from release under CORA. We agree.

Article VII, section 8 of the Colorado Constitution provides in relevant part:

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 giving effect to a constitutional provision, “we employ the same set of construction rules applicable to statutes; in giving effect to the intent of the constitution, we start with the words, give them their plain and commonsense meaning, and read applicable provisions as a whole, harmonizing them if possible.” Danielson v. Dennis, 139 P.3d 688, 691 (Colo.2006).

The constitutional provision in its fourth sentence uses, but does not define, the phrase “secrecy in voting” by stating that “secrecy in voting” must be preserved, regardless of how the votes cast at any election are received and registered. Because we must read the constitutional...