City trips over its ego in Marks case
October 9, 2011
Unlike at least one member of Aspen City Council (according to news reports), I read the entire opinion of the Colorado Court of Appeals in the case of Marks v. Koch. It didn’t take long – it is only 16 double-spaced pages. How many council members read it before voting to proceed with a further costly appeal?
The opinion is well-reasoned and thorough. As with any good judicial opinion, it summarizes key facts, states each argument of the two sides, analyzes each argument citing relevant law and states a conclusion. It is not complicated and it is not based on anyone’s political viewpoint or vendetta; it is a straightforward analysis and opinion. I recommend it to anyone who is interested in the issues on either side.
The opinion deals squarely and persuasively with the objections of council relating to the possibility of violating the anonymity of every voter and specifically allows for the city clerk to withhold ballot images that could violate anonymity. It points out that the city already disclosed some of the images voluntarily, undermining the city’s argument that disclosure would violate voter secrecy. It correctly distinguishes between the right of voters to the secrecy of how they voted, which the opinion protects, and the secrecy of the image of ballot, which is a public record that cannot be kept secret. It also deals squarely with the city’s bogus argument that disclosure could lead to vote buying.
The city objects that the opinion did not address one argument that the city wanted addressed, i.e., that compliance would impose a burden on the city. So the city would rather subject itself and the citizens to the burden of endlessly and quixotically fighting against open government and impose the attendant costs of time and money on city staff and the taxpayers? Council cannot be so naive as to believe the citizens buy that one, especially after reading the opinion and seeing that the court allowed tremendous discretion to the city clerk to protect the secrecy of the votes cast (as opposed to the images of ballots, which is different).
New reports also say the city thinks the court’s decision is unnecessary because, in the city’s unilateral view, the election was transparent enough. Well, that isn’t the legal issue. Citizens have rights in this state that are not left totally to the discretion of city officials. That is the law, according to the Court of Appeals.
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After reading the opinion I cannot help but conclude that the city is wasting everybody’s time and money. This dispute is an argument looking for a reason; there is no reason, only emotion, ego and pride. Little people never admit mistakes. Big people admit mistakes and move on. Move on, Aspen.