City cuts Marks a $195K check
March 26, 2014
The Aspen City Council honored a court order to pay election activist Marilyn Marks $195,630 on Monday.
Marks was an Aspen mayoral candidate in the 2009 election. After losing to Mick Ireland, she requested to view the ballots, asserting that it is a citizen's right to verify election results. The city denied the request on the grounds that citizens have a constitutional right to a secret ballot. Marks then sued City Clerk Kathryn Koch, custodian of the ballots. A District Court sided with the city, while the Colorado Court of Appeals, which trumps the district, ruled in favor of Marks.
The Colorado Supreme Court had agreed in April 2012 to hear the city's motion to appeal the Appellate Court's ruling, but following a legislature change concerning the examination of ballots, it reversed that decision. There was no explanation from the high court, but based on the Appeals ruling, it meant Marks could examine 2009 ballot images.
At a District Court hearing in July, Marks filed a request for $300,543, which the city objected to as being unreasonable. By January, she had increased her request to $407,646. Based on expert advice and it's own discretion on what is reasonable, the court ordered payment of $195,630 on Friday.
On Monday, City Attorney Jim True said it was in the city's best interest to pay Marks, rather than appeal and risk losing more money at an interest rate of 8 percent.
"Although the amount awarded by the Court was greater than the amount suggested by the City, it appears to be a reasonable determination and is significantly less than the requests made by Ms. Marks," True wrote in a memorandum to the council.
Council members Adam Frisch, Ann Mullins, Art Daily and Mayor Steve Skadron agreed. Councilman Dwayne Romero was absent.
"I'm happy to move on and not appeal and get this behind us," Frisch said, echoing True's remarks that it was more than Aspen wanted to spend but less than Marks' request.
"That's how the legal system works. Everyone gets frustrated and moves on."
Marks, who has not reviewed the 2009 ballots since she received them, said the court order does not cover her expenses from the legal battle with Aspen. She said it's a shame that Aspen taxpayers and she had to fund the fight for a transparent election.
"It's basically now a shared investment that Aspen and I have made," she said. "I did not get paid nearly what my cost is in this. … Now having had this shared investment, I'm hoping people will use it and will in fact oversee their elections."
Marks has not reviewed the 2009 ballots because "there are more pressing statewide issues." She contends that what started out as a local controversy has evolved into a very important fight, indirectly resulting in more transparency for elections across the state. She currently is battling the issue of government access to traceable ballots at the federal level, arguing that 45 Colorado counties engage in the "insidious practice." She said it was through the Aspen case that she accidentally discovered the voter-privacy issue in surrounding counties.
True disagreed with Marks that the Aspen case is significant, saying he does not see the correlation between "Marks v. Koch" and her current battle. He pointed out that Pitkin County has never used numbered ballots, which Marks also acknowledged.
Daily called the court order a reasonably balanced result, and Skadron concurred.
"This has gone on a long time," Skadron said." I think we should honor the court's order, and I'm happy it's ended."
The $195,630 order includes attorney fees in the amount of $166,656 and other costs in the amount of $28,974.