Aspen resident Marilyn Marks has filed a court motion demanding $300,000 in attorneys fees from the city of Aspen in her lawsuit seeking access to voted ballots, although she likely didn’t pay her attorney that much in the case.
In the eight-page motion, filed Friday in Pitkin County District Court, Marks’ attorney, Robert McGuire of Denver, says the reasonable amount of fees he could charge for his services through the four years of litigation with the city comes to $295,579.
Marks sued the city in 2009 after the municipal government denied her open records request for digital copies of ballots cast in that May’s municipal election. Aspen city attorneys contended that releasing the ballots would violate Colorado law, which protects voter anonymity. The city prevailed at the district court level, but Marks won on appeal. The state Supreme Court declined to hear the case, and the city in May posted images of most of the 2,500 ballots from that election on its website.
McGuire’s motion is based on what he says are the prevailing market rates for legal services at the district, appellate and Supreme Court levels. For district court proceedings, McGuire’s motion says he put in 481.4 hours, at a rate of $385 per hour, for a total of $183,339. At the appellate level, the going rate goes up to $425; McGuire wrote that he worked 225.4 hours on the appeal, coming to $95,795. At 32.1 hours for the Supreme Court proceedings, the rate goes up to $450, totaling $14,445.
However, at least at the beginning of the case, Marks was paying McGuire $225 an hour, according to a 2009 fee agreement that is included as an exhibit to the motion. That rate was in effect at least through the district court proceedings, and at least for the beginning of the appeal, according to an updated fee agreement from May 2010. The motion says that McGuire is currently billing Marks the higher amounts in this and other cases.
Marks said what she actually paid McGuire is irrelevant. The going rate is what matters, because the law is set up to encourage those who think they have a case to pursue it, regardless of their financial means, she said.
“[Lawmakers] wanted to give an incentive for attorneys to take cases pro bono, even,” Marks said.
Conversely, the market rate principal also is intended to make government entities think twice before withholding what might be considered public records, Marks said.
The $385-per-hour rate for the district court also is based on what Aspen city attorneys attested their time would be worth under the market rate principal, following the city’s win in that stage of the proceedings. After that victory, the city filed a motion seeking to collect $70,850 from Marks, including court costs and filing fees.
McGuire and Marks contend that the $225-per-hour rate is a deep discount, and that it has been scaling up as the litigation has progressed.
“I offered Ms. Marks this extreme discount in August 2009 both because I sought to facilitate her financial ability to bring this important public-interest case and because having recently returned to Colorado from practicing U.S. law abroad, I was less familiar then with the prevailing hourly rates charged by Colorado attorneys than I am now and frankly expected them to be lower,” McGuire wrote in an affidavit on file with the court. “In the past four years, however, I have become well acquainted with Colorado attorneys’ rates, and the rates that I have charged Ms. Marks on this matter have steadily converged with the market rates claimed here.”
The city has until July 26 to file a response to Marks’ attorneys fees motion. City Attorney Jim True has argued in the past that the city should not have to pay attorneys fees for district court proceedings, since it won at that level; he said he may submit that argument in this case.
True said he has no regrets about fighting Marks in court. He noted that two local judges, in this case and in another ballot-access case, ruled in favor of the city’s argument that it would be illegal to release voted ballots under the laws in place at the time. The Court of Appeals, he said, found that the digital copies of ballots that Marks sought were not covered by ballot secrecy rules in place at the time.
He said the city’s response on attorneys fees will speak for itself, but he predicted that Marks would not be getting an award for $295,579.