The city of Aspen will attempt to recoup attorneys’ fees from Marilyn Marks now that a judge has thrown out her case in which she sued the city to force the release of ballot images from last May’s municipal election.
City Attorney John Worcester confirmed Tuesday that Aspen City Council has directed him to file a motion with the court to force Marks to pay for the time he and city special counsel Jim True devoted to the case. The city has until Thursday to file the motion.
Both True and Worcester are on salary, but each spent more than 100 hours on the case, according to city estimates. The city did not have the exact dollar figure it will be seeking on Tuesday, but it will likely be between $50,000 and $70,000, based on compensation rates for Aspen attorneys between $250 and $300 per hour. Worcester said he is conducting a survey of local law offices to see what the going rate is.
For a judge to grant the city’s request that Marks reimburse it for legal fees, the court would have to find that Marks’ suit was “frivolous, vexatious or groundless.”
“The fact that the court dismissed her case out of hand shows that she didn’t have a case,” Worcester said.
Ninth Judicial District Court Judge James Boyd granted the city’s motion to dismiss Marks’ suit on March 10, citing a provision in the Colorado Constitution which requires all ballots to be secret. Marks had sought the ballot images under a Colorado Open Records Request, but the city claimed, and Boyd agreed, that the ballot images were exempt from public records laws. She wanted to use the images — literally photographic scans of the actual ballots cast — in an audit of the election results. Marks, who ran for mayor but came in second in the election in question, is an opponent of instant runoff voting, which the city used for the first time in May.
Marks said she thought the city’s attempt to recoup attorneys’ fees was “absurd” and “punitive,” and that there is no way a court will find her suit to be frivolous.
“It’s certainly not going to discourage me from moving ahead and holding the city accountable” for election transparency issues, Marks said.
Marks is promising to appeal the district court ruling to the state appellate court level (she has until April 25 to do so). In that case, a judge will not rule on the city’s motion to recoup until after the case is completely resolved and the city can amend its motion to reflect time spent on the appeal.