Aspen asks judge for $70K in legal fees in Marks suit |

Aspen asks judge for $70K in legal fees in Marks suit

ASPEN – The city of Aspen is asking a judge to award it more than $70,000 in attorneys fees and associated costs in defending a lawsuit levied by Aspen resident Marilyn Marks, whose legal case against the municipality was dismissed earlier this month.

According to documents filed in Pitkin County District Court Thursday, the city is requesting $67,047.35 in attorneys fees, which is based on $385 an hour – the prevailing rate in Aspen for lawyers of the skill and experience of City Attorney John Worcester and Jim True, special counsel for the city.

According to exhibits attached to the court filing, Worcester calculated that he spent 129.4 hours defending the city since last August. True spent 44.75 hours on the case.

Another $3,807.53 is being sought for fees associated with defending the case, including $3,500 for expert witness Scott Adler, a professor of political science at the University of Colorado-Boulder, who charged $175 an hour for consulting services that amounted to 20 hours.

Marks filed a lawsuit in October against City Clerk Kathryn Koch, which attempted to force Koch into releasing ballot images from the May municipal election.

Shortly after the May 5 election, Marks filed a Colorado Open Records Act request for 2,544 digital ballot images cast by Aspen voters so the images can be checked against how the scanning machines interpreted them as part of an independent review to be conducted by an outside group.

That request was denied by the city, prompting Marks to file the lawsuit.

The city filed a motion to dismiss Marks’ lawsuit, arguing several points, including that people have a right to a secret ballot under the city’s home rule charter and the Colorado constitution.

Judge James Boyd dismissed the case on March 11, citing the state constitution, which requires the city clerk to keep ballots secret.

Marks said she plans to appeal the decision but first she and her Denver-based attorney, Robert McGuire, filed a motion Wednesday asking the judge to reconsider his decision based on new arguments they presented.

Marks is an opponent of instant runoff voting, which ranks candidates in order of preference and was used for the first time in Aspen last May. Marks is involved in an effort to review the system and make reforms to the local election process.

During the legal wrangling, the city had argued that Marks’ lawsuit was an attempt to gather information to continue her ongoing campaign of disparaging and annoying the local government for the manner in which it conducted the May election.

In the city’s motion for attorneys fees, the city argues that it be awarded reimbursement because the court allows for it if the plaintiff brought an action that lacked “substantial justification,” which means the suit is frivolous, groundless or vexatious.

The motion cites case law that describes a claim being vexatious “if brought or maintained in bad faith to annoy or harass another; vexatiousness includes conduct that is arbitrary, stubbornly litigious or disrespectful of the truth.”

“… defendant asserts that plaintiff’s efforts throughout the case support a finding that the claim was vexatious,” the motion reads.

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