Marks v. Koch: Was it worth it? | AspenTimes.com

Marks v. Koch: Was it worth it?

A local district judge has ordered the city of Aspen to pay 2009 mayoral candidate Marilyn Marks a little more than $195,000 for attorneys fees related to her battle to examine ballot images from that election, which was won by former Mayor Mick Ireland.

The City Council has agreed to pay the amount, and we couldn’t be happier. In the big picture, the payment will end a nearly 5-year-old battle of wills and egos related to a matter about which only the most ardent Marks or Ireland supporter probably cared. In the small view, a lot of time, money and ink was spent by news media over an issue — Marks’ right to view the images; the city’s contention that it must protect the privacy of its voters — that ultimately was not high on the overall community’s list of concerns.

To recap, briefly: Ireland defeated Marks in the May 2009 municipal election, which relied on a a software system called Instant Runoff Voting, designed to avoid the expense of a runoff. (That system soon was scrapped by Aspen voters.) Marks was critical of the system and asked for digital copies of the ballot images, and the city denied her request, citing state law and the public’s right to a secret ballot.

Marks filed a lawsuit in October 2009 (Marks v. Koch, naming City Clerk Kathryn Koch as the defendant). District Judge James Boyd dismissed the case in March 2010. Marks appealed, and the state Court of Appeals in September 2011 ruled in her favor. The city filed a writ of certiorari in November 2011 asking the Colorado Supreme Court to hear the case, but the higher court in the summer of 2012 declined — thus handing Marks the win and avoiding the extra-innings play.

While Marks was provided CDs containing some 2,500 ballot images from the election, she admits she hasn’t viewed them, given the time she has spent in recent years as an advocate for open elections in other parts of the state. In essence, hers was more of a philosophical victory. Meanwhile, the two sides have been battling over Marks’ legal fees.

She claimed that she was owed slightly more than $407,000, an amount the city argued was too high. As judges often do, Boyd split the baby, so to speak, coming up with an amount his court deemed as reasonable.

In November 2011, Marks sued the city over the right to inspect actual paper ballots from the May 2011 municipal election, in which Ireland won a third and final term as mayor. The city filed a motion for summary judgment in that matter, and District Judge Gail Nichols ruled against Marks in August 2012, saying that at the time Marks filed suit, the state had no provision for making paper ballots available for public inspection. Marks appealed Nichols’ decision, but the appellate court declared the issue moot.

City Attorney Jim True said Tuesday that he believes all litigation between the city and Marks is basically finished. Both sides will claim victory to varying degrees: Marks, because the Instant Runoff Voting system is part of Aspen history and the city was forced to turn over images from the 2009 election; the city, because the court ruled that it did not have to supply her with all of the images, such as 130 that had distinguishing marks that might have identified certain voters.

Marks always has insisted that her fight with the city was not about the election result, and that may be true. The city always claimed that it has countered Marks’ actions on the grounds that state law preserved voter secrecy.

Great. A philosophical election issue was tackled to the fullest. Marks was a thorn in the side of the city for the better part of five years, and the city spent more than 350 hours of its time dealing with her legal wranglings.

But we are left to wonder, in hindsight, was it gobbledygook — much ado about nothing?


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