Marilyn Marks

A decision by the Colorado Supreme Court in a case involving Chaffee County and voting transparency advocate Marilyn Marks could clarify the issue of awarding attorney fees under the Colorado Open Records Act (CORA).

Presenting oral arguments before the court Tuesday, the two parties offered differing interpretations of a specific subsection in CORA. The case before the court stems from two record requests Marks made during the 2011 general election.

Originally Marks emailed former Chaffee County Clerk and Recorder Joyce Reno asking to “review some voted ballots from the 2010 general election,” according to court documents.

After being alerted that the request was too broad and could not be fulfilled, Marks sent a second request – without revoking the initial request – asking to “inspect and copy the first anonymous/untraceable ballot in the mail-in ballot group … in the first box of mail ballots stored in the November 2010 election,” court documents state.

While clarifying that her request was not being denied, the county responded again saying the request would present an undue burden on Reno’s office during an election, and that Reno had petitioned the district court for guidance on the request.

The former clerk then filed a CORA action in district court seeking to prevent disclosure “because she ‘believe(d), in good faith, that Colorado law prohibits’ the disclosure of voted ballots, and that such disclosure would substantially injure the public interest by chilling a citizen’s right to vote.”

While she was listed as a respondent, Marks did not file an answer. Prior to the hearing, both parties agreed to stay the proceedings due to pending legislation that could alter the outcome. Once the legislative period ended, Reno supplied a single anonymous voted ballot per statutory guidelines, leaving Marks’ request for attorney fees as the only outstanding issue.

Opposing interpretations

That series of events – agreed to by both parties in an appellate court document from January 2014 – set the groundwork for the arguments before the Colorado Supreme Court Tuesday.

Speaking first, Chaffee County Attorney Jenny Davis argued that because the county initiated action against Marks under CORA section 6(a) – a provision allowing custodians to ask a district court to prevent record disclosure if the custodian believes it would substantially injure public interest – and since 6(a) makes no specific reference to attorney fees, the county is not responsible for Marks’ fees.

Had Marks brought action against the county under CORA section 5, which states that attorney fees may be shifted to the custodian if a finding concludes nondisclosure was improper, she might very well be entitled to attorney fees, said Davis, adding that legislative history consistently refers to fees being awarded to the party that brings the action.

However, that interpretation of the law defies CORA’s intent to prevent custodians from forcing requestors into court, said Rob McGuire, Marks’ attorney.

That function of CORA, he argued, was decided by the court in Benefield v. Colorado Republican Party, in which the court wrote, “The statute is clearly structured to provide disincentives to forcing an applicant to vindicate his right of inspection by filing with the district court and encouragement for resolution of the matter otherwise.”

If that interpretation is upheld, then under section 5 the custodian has an incentive not to take the requestor to court, McGuire said, and under section 6(a) the custodian has no incentive to take the requestor to court unless the custodian believes they are going to win because if they were wrong they would still have to pay fees.

At that point one of the justices – echoing Davis’ earlier claims that Marks was not a party and since there was no actual hearing she did not prevail – questioned if Marks was indeed a prevailing party.

McGuire, who contends Marks did prevail because the record was ultimately disclosed, said that assertion points to the flaw of the county’s interpretation of section 6(a). Even if a hearing were held and Marks won, she still would not receive attorney fees under the county’s belief that there is zero fee shifting under section 6(a).

Davis later contended that if fee shifting were intended under section 6(a), legislators would have specifically added that language when it was drafted.

Responding to Davis’ claim that Marks needed to bring action under section 5 to be eligible for attorney fees, McGuire said Marks did take that course in a different lawsuit, which led to more costly attorney fees owed to Marks when the case was decided in her favor. In an effort to minimize cost and based on her interpretation of the law, Marks decided not to take legal action against Chaffee County.

After further discussion, one of the justices asked McGuire what, in his mind, is the standard for awarding attorney fees, to which he responded that his standard is very favorable to the requestor.

“Once you are taken to court, the custodian is responsible for fees unless they obtain a finding on the merits that they properly withheld the records,” McGuire said.

Another justice inquired about Davis’ interpretation of section 6(a), asking if the district judge had ruled in favor of Marks if she would be owed attorney fees.

“In this case our position is that had there not been a filing under (section) 5 and if we went to a proceeding on the merits and there was a finding that the records should have been disclosed, she would not be entitled to attorney fees because there is nothing in section 6 that allows for attorney fees,” Davis said.

Decision uncertain

Oral arguments concluded after an hour. When the court could issue a decision is uncertain. Davis said she believes a decision could come in the next several months, which Marks agreed would be reasonable. Any decision would be a conclusion to a lengthy and costly experience for both parities.

Based on estimates from McGuire, Marks said her attorney fees for this case are slightly above $130,000, which does not include the preparation and arguments before the Colorado Supreme Court.

Since October 2011, Davis said she has spent approximately 415 hours on this specific case.

While a decision by the court would bring an end to this case, business between Marks and the county might not be finished. Marks filed a petition for a writ of certiorari with the U.S. Supreme Court in February pertaining to a separate lawsuit, also involving four other counties and former Colorado Secretary of State Scott Gessler.

In the original lawsuit filed in 2012, Marks claimed that unique barcodes on ballots in some of the counties, including Chaffee, made it possible to trace each individual ballot back to the person who cast it.

The U.S. Court of Appeals 10th Circuit dismissed the lawsuits against the counties in October, writing that the alleged damages were too speculative to establish legal standing.

That same court denied a request for a rehearing in that case. The Supreme Court has not decided whether or not it will take up the case.

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