Did city attack the messenger?
While there can be no denying the right of the city to appeal its loss in Marks v. Koch to the Colorado Supreme Court, given that it is a highly visible case of first impression in the state, there are a multitude of reasons to question its motivation.
IRV is dead (RIP), and despite the straw man erected by the mayor, this case was never a challenge to the outcome of the 2009 mayoral election. But the vendetta that started after the 2009 election, beginning at the top of the city and oozing through council meetings, columns, letters and blogs in the papers, showed absolutely no respect for Marks’ quest for election transparency. She took the high ground, resorted to the courts and, at least for now, is the victor.
Importantly, the city cannot say it has nothing to lose and should appeal based on the amorphous principle of election secrecy. The mandatory attorney fees provision of the statute is a significant mitigating factor and is in place precisely to discourage heavy-handedness by governmental entities.
Recall that the city submitted an attorney fee application for $70,000 after it prevailed in a very early stage of the case, and it was based on salaried government employees, not attorneys in private practice. Marks has already been awarded attorneys fees for the first appeal, and if the case is taken to the Colorado Supreme Court resulting in affirmance of the appellate court’s decision, Marks will be awarded her fees and costs for that phase as well.
The city of Aspen – that means us – will have to cut a very large (read as potentially six-figure) check as a result of stubbornness on the part of those pulling the strings.
Should that occur, the citizens will have every right to question the motivation for any appeal. On one hand was it based on the unvarnished objective advice of counsel? On the other, was the decision influenced by stale, unjustified hate for the adversary?
Neil B. Siegel
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