The rest of the story |

The rest of the story

Dear Editor:

One could read the article “Legal fees but one battle in Aspen ballot case,” The Aspen Times, July 11, and learn that the city of Aspen denies responsibility for reimbursing Marilyn Marks’ legal fees. One could learn that the city claims it “acted in good faith.” One could not, however, learn why Marilyn believes that the city’s good faith is irrelevant and she is entitled to recover her fees.

Here’s why.

When the city clerk received Marilyn’s request for public records (ballots), the clerk had three choices. She could grant it, deny it or investigate and then decide in good faith that she was unable to determine what she was required to do. See CRS 24-72-204(5) and (6). That is what the Colorado law provides.

If the clerk believed in good faith after reasonable inquiry that she couldn’t determine her duty, she could have applied to the Colorado District Court to tell her what she was required to do. Let’s call that a “6a” application, for convenience. It is in the law so a county or city isn’t liable for legal fees when it really doesn’t know what it is supposed to do and goes to the judge to get instructions.

In the 6a proceeding, the clerk would have had the burden of proving she had investigated and yet remained unable to determine her duty “in good faith.” If that had happened, Marilyn’s legal fees and costs for that 6a proceeding could not have been awarded to her. So why is Marilyn entitled to fees? Because the city never used the 6a process; it thought it knew what it was supposed to do and didn’t need any old judge to tell it.

So the clerk unequivocally denied Marilyn’s Colorado Open Records Act request, never claimed she didn’t know what to do about Marilyn’s request “in good faith” and never petitioned the district court for direction on how to satisfy her duty. Instead, because the clerk had denied the request, Marilyn had to sue under another section of CORA (call it section 5 for convenience) to get the records. Section 5 applies when “any person (is) denied the right to inspect any record.” It requires that, if the court determines the denial of the right of inspection was improper, it “shall award” attorneys’ fees and costs to the “prevailing applicant” (in this case Marilyn).

In the section 5 matter, the city clerk exhibited no ambivalence, arguing all the reasons why she had denied the request. The district court found that the city had acted properly, so the attorneys’ fees issue did not matter at that time.

But then Marilyn won a unanimous reversal at the Colorado Court of Appeals, finding that the city had improperly denied her the right to inspect the records. So it is the same as if the district court had decided the city was wrong in a section 5 proceeding in the first place, and now the district court “shall award” attorneys’ fees and costs.

The city is crying now about being responsible for Marilyn’s fees because it “acted in good faith.” Well, it is a lot too late. To avoid that responsibility because of its “good faith” the city needed to file a 6a action when Marilyn filed her public records request. Instead, the city just denied Marilyn’s request, and the city threw away any possibility of avoiding paying Marilyn’s fees.

Now that the case has totally unraveled for the city, it is making up laws about good faith in section 5 actions that exist only in a 6a action that the city never filed. It is like claiming that you don’t owe property taxes because you paid your parking fine. They are totally separate.

I have summarized the facts and law as I understand them. I hope I was clear. If the city has a different view of the facts and law, I welcome their publishing them in this paper with specificity for all to see. It would be helpful to cite some relevant law that applies to this case, however, and to explain why it does apply.

Inquiring minds want to know.

Maurice Emmer


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