DISTRICT
COURT, PITKIN COUNTY, STATE
OF
Pitkin County Courthouse
506 East Main Street, Suite E
Aspen, Colorado 81611
Ÿ
COURT
USE ONLY
Ÿ
Plaintiff:
Marilyn Marks,
vs
Case Number: 09 CV 294
Defendant:
Kathryn Koch.
Div.:
3
Attorneys for Kathryn Koch:
John P. Worcester, City Attorney
Jim True, Special Counsel
City of Aspen
130 S. Galena St.
Aspen, Colorado 81611
Telephone: (970) 920-5055
Facsimile: (970) 920-5119
E-mail: johnw@ci.aspen.co.us
jimt@ci.aspen.co.us
KATHRYN KOCH’S
MEMORANDUM IN OPPOSITION TO PLAINTIFF’S
MOTION FOR LEAVE TO FILE A SURREPLY
Comes
now the Defendant, Kathryn Koch, by and through her undersigned counsel,
and
hereby
submits the following Memorandum in Opposition to Plaintiff’s Motion for Leave
to File a
Surreply to Defendant’s Motion to Dismiss. Plaintiff contemporaneously
filed with the court a
Surreply in Opposition to Defendant’s Motion to Dismiss (“Proposed Surreply”.)
For the reasons that follow, Plaintiff’s Motion for Leave to File a
Surreply to Defendant’s
Case
No. 09 CV 294
Kathryn
Koch’s Memorandum
in
Opposition to Plaintiff’s Motion
for
Leave to File Surreply
Motion to Dismiss should be denied. Plaintiff in her motion seeks to file
a surreply “in order to
respond to incorrect statements, new factual references and new legal
arguments made and raised
for the first time by the Defendant in the Defendant’s Reply Memorandum
in Support of Motion
to Dismiss.” Plaintiff has failed to provide sufficient grounds to show
that she is entitled to file a
surreply memorandum. She is not entitled to respond to perceived
“incorrect statements” that
may have been made by the Defendant; there are no “factual references”
that Defendant made in
her Reply Brief that require further response by the Plaintiff; and,
whatever legal arguments
made by the Defendant were in reply to the Plaintiff’s arguments and
require no further response
from the Plaintiff.
A trial court has “discretion to deny a request to file a surreply,”
Olson v State Farm
Mutual Automobile Insurance Company, 174 P.3d 849, 860
(Colo.App.2007) particularly when
the moving party has “not raised any legal arguments or refer to any
facts that were not included
in previous pleadings.” (Emphasis added) Id. The parties to
this action agreed upon a briefing
schedule with the court.
Plaintiff was given a full opportunity to respond to Defendant’s
motion
and should not now be allowed to once again respond to Defendant’s arguments.
Although a party may be required to seek a surreply to preserve rights on
appeal, the
Plaintiff’s reliance on Giguere v. SJS Family Enterprises, Ltd. 155 P.3d 462, 467
(Colo. App. 2006)
is misplaced. In
Giguere, the moving party referenced a statute for the first time in
a
reply. The trial court ultimately relied on that statute in its opinion
and decision. Since the
non-
moving party made no effort to address the new statutory citation, it
could not challenge that
statute’s constitutionality on appeal. Unlike Giguere, the Defendant in
the instant case has not
Case
No. 09 CV 294
Kathryn
Koch’s Memorandum
in
Opposition to Plaintiff’s Motion
for
Leave to File Surreply
alleged any new facts or relied on any new legal arguments in support of
her position. Thus,
Plaintiff’s motion should be denied.
A. Defendant did not refer to
any facts not included in previous pleadings.
Plaintiff contends that Defendant’s
Reply “makes at least five incorrect statements
mischaracterizing the Plaintiff’s position that Plaintiff should be
permitted to rebut and correct on
the record…” Motion, ¶2. Plaintiff
submits no authority to support
her contention that
“mischaracterizing” a non-moving party’s statement or position is grounds
to file a surreply.
A
court is certainly capable of evaluating a plaintiff’s position and the
accuracy of a defendant’s
assertions with regard to the plaintiff’s position. In this case, however, Defendant is
compelled to
address these alleged mischaracterizations and to note that they are
merely attempts on the part of
this Plaintiff to have the last word.
1. Plaintiff
did, in fact, acknowledge that much of Plaintiff’s factual allegations
in
her Complaint are immaterial to the issues in the case at
bar.
Plaintiff objects to Defendant’s statement at page 2 of her Reply that
“the Plaintiff
acknowledges that much of Plaintiff’s factual allegations contained in
her Complaint are immaterial
to the issues in the case at bar.” Proposed Surreply, p. 2. Plaintiff
argues that she has never
“expressly or impliedly made such a concession.” Id. The statement made by Defendant in
her
Reply Memorandum is nothing more than a fair observation of the
Plaintiff’s Response
Memorandum. A comparison of the factual allegation in her Complaint and
the “Statement of
Facts” presented by her in her Response Memorandum, shows that the
allegedly objectionable
comment was, in fact, correct. Plaintiff did concede that the material
facts in the case at bar are
Case
No. 09 CV 294
Kathryn
Koch’s Memorandum
in
Opposition to Plaintiff’s Motion
for
Leave to File Surreply
those set forth in her version of
the Statement of Facts, and do not include the many immaterial
and
irrelevant factual allegations made in her Complaint. In any event, the allegedly
offending
statement did not refer to any facts not included in previous pleadings.
Indeed, the statement
confirmed that the court could limit the amount of alleged facts that are
material to the case at bar by
virtue of the Dependant’s own recitation of the material facts as set
forth in her “Statement of
Facts.”
2. Plaintiff
did, in fact, acknowledge that certain ballots have identifying
information
in the form of write-in votes.
Plaintiff objects to Defendant’s statement at page 15 of her Reply that
“Plaintiff
acknowledges here that certain ballots have identifying information in
the form of write-in votes.”
Proposed Surreply, p. 2. Again, the statement made by Defendant in her
Reply Memorandum is
nothing more than a fair observation of the Plaintiff’s Response
Memorandum. The fact remains
that the Plaintiff, without any suggestion by Defendant that write-in
votes contained distinguishing
marks, voluntarily limited her CORA request “to exclude any TIFF files
showing write-in votes.”
Complaint, ¶55. This voluntary limitation of her CORA request fairly
suggests to Defendant that
the Plaintiff acknowledges that ballots with write-in votes
contain distinguishing marks. By making
that observation in a pleading, Defendant does not refer to
a fact not included in previous pleadings.
In fact, the Plaintiff first mentioned write-in votes in her Complaint by
indicating that her CORA
request had been amended to exclude ballots containing such votes.
Complaint, ¶55.
3. Plaintiff has, in fact, claimed that the election
could be challenged for
being
unconstitutional.
Plaintiff objects to Defendant’s statement in footnote 6 at page 17 of
her Reply regarding
Case No. 09 CV 294
Kathryn Koch’s Memorandum
in Opposition to Plaintiff’s Motion
for Leave to File Surreply
“the
Plaintiff’s continuing claims of an unconstitutional election.” Proposed
Surreply, p. 2.
Once
again, the statement made by Defendant in her Reply Memorandum is nothing
more than an
observation of the Plaintiff’s pleadings in the case. In her Complaint,
Plaintiff makes reference to
“[t]he proper remedy for such a patterned violation of the constitutional
requirement of ballot
secrecy is … for this court to perform its ‘duty’ of declaring any such
tainted election to be void ab
initio.” Complaint, ¶52. In her Response
Memorandum, Plaintiff again suggests that it might be the
“duty” of this court to void the election ab
initio if it determined that the election violated the right
to a secret ballot. Response, p 11, fn 1. Why does the Plaintiff suggest that the court
may have a
“duty” to void the election ab initio if not
to “allude” to her claims of an unconstitutional election?
In any event, Plaintiff again fails to suggest how this “fact” was not
included in previous pleadings.
Plaintiff herself raised the matter in her Complaint and her
Response.
4. Plaintiff has, in fact, argued that ballots that are illegally marked
should not be counted.
Plaintiff objects to Defendant’s statement at page 18 of her Reply that
“Plaintiff points out
that if some voters at the last municipal election marked their ballots
in such a way that makes those
ballots personally identifiable, they voted illegally.” Proposed
Surreply, p. 2.
Plaintiff further
objects to Defendant’s statement at page 19 of her Reply that “all
ballots with distinguishing marks
are to be considered as illegal ballots and not counted.” Id. These statements are again, nothing
more than observations and fair argument of Plaintiff’s positions. They
certainly are neither new
legal arguments nor new facts not identified in previous pleadings.
Defendant has argued from the very beginning of this case that voters may
have
unintentionally marked their ballots in the last election in such a way
that their ballots can be
Case No. 09 CV 294
Kathryn Koch’s Memorandum
in Opposition to Plaintiff’s Motion
for Leave to File Surreply
identified if
all the cast ballots are made available for public inspection. The Defendant has
never
argued that it is aware of any single ballot being intentionally marked for any improper purpose.
Thus, Defendant is not aware of any illegal ballot or illegally marked
ballot. Indeed, as Defendant
has indicated in her Reply Memorandum, there was no reason for anyone to
intentionally mark their
ballot in any manner that would distinguish it from all the others that
were cast in the May election.
No one, except perhaps the Plaintiff, was under the impression that the
ballots cast in the election
would be made available for public inspection following the election. Why
would they? The right to
a secret election has been part of the Colorado Constitution for over one
hundred years. The
Defendant has a reasonable concern that publicly releasing ballot images
from the last election will
cause substantial injury to the voters in the last election. The bigger concern
that Defendant has
expressed is the reasonable likelihood that voters will intentionally make identifiable marks on their
ballots in future elections. If ballots are to be released to the public
as a result of future CORA
requests, voters will, indeed, have a motive to improperly mark their
ballots. Perhaps more
importantly, voters will not have the assurance they now have that their
ballots will not be made
public under any conceivable circumstance in the
future.
The point that Defendant has tried to make in its previous
pleadings is that the Colorado
Legislature has made it illegal to publicly release cast ballots, or
copies of the ballots, in part, to
make it moot whether a ballot has distinguishing marks on it, or not. If
the public is not allowed to
inspect cast ballots after each election, there would be no motivation to
intentionally mark ballots in
a distinguishing manner and election officials would not need to concern
themselves with ballots
that might contain suspicious marks. Appended to Defendant’s Reply
Memorandum are four
Case No. 09 CV 294
Kathryn Koch’s Memorandum
in Opposition to Plaintiff’s Motion
for Leave to File Surreply
exhibits of
portions of ballots cast at the last election that could be viewed by election
officials as
illegal ballots as they have been marked in a manner that could make them
distinguishable from all
other ballots cast, and, therefore, make them attributable to individual
voters. If the public were not
able to inspect such ballots after each election, the ballots so marked
would remain anonymous.
It is somewhat ironic that Plaintiff now complains that Defendant
suggests that election
officials or a court in an election contest may exclude from tabulation
any illegally marked ballots.
It is the Plaintiff who has suggested that it is this court’s “duty” to
declare any election that violates
the right to a secret ballot as unconstitutional and void the election ab initio. Finally, Plaintiff herself
acknowledges that it is the “Defendant’s duty to exclude illegal ballots
from tabulation…” Proposed
Surreply, p. 3. How is the Defendant or future election officials to
“exclude illegal ballots from
tabulation” without excluding the ballots themselves?
B.
Defendant’s analysis of the four TIFF files does not refer to any facts not
included
in previous pleadings.
In Section II of Plaintiff’s Proposed Surreply, Plaintiff objects to Defendant’s reference to
the four TIFF files appended to Defendant’s Reply
Memorandum as she claims that they are
referenced for the first time in the Reply Memorandum. Proposed Surreply,
p 3. In addition,
although having nothing to do with grounds for filing a surreply,
Plaintiff argues that the reference
to the TIFF files “showcases the frivolity of the Defendant’s own
position…” Id. Both of plaintiff’s
arguments are incorrect.
Plaintiff’s Proposed Surreply to Defendant’s Reply
Memorandum uses what is, in
essence, the well-worn childish school yard refrain that “I’m not
frivolous, you’re frivolous.”
Defendant’s Reply Memorandum regarding the applicability of
§31-10-616(1), C.R.S., provides
Case No. 09 CV 294
Kathryn Koch’s Memorandum
in Opposition to Plaintiff’s Motion
for Leave to File Surreply
Plaintiff with no justification for submitting a surreply. Nothing new was
submitted on this topic
by the Defendant. Defendant merely pointed out the weaknesses
of Plaintiff’s case.
Nonetheless,
the Defendant must note that the four TIFF files are not new facts in the case
at
bar. The fact that portions of some ballots cast at the last election
were recorded by Grassroots TV
was first referenced by the Plaintiff in her Complaint. Complaint,
¶30. Indeed,
Plaintiff appended
“a selection of four example frozen frames” from the referenced
recording. Complaint, Exhibits 3-1
to 3-4. Defendant’s use of the same type of examples from the recording
first mentioned and put
into evidence in the case at bar from Plaintiff can hardly be considered
facts not included in
previous pleadings. Thus, the reference to these facts in Defendant’s
Reply Memorandum can
hardly be cause for Plaintiff to get another opportunity to argue their
relevance, importance, or lack
of importance in this case.
Again, Plaintiff is also wrong to suggest that the reference to these
frozen images of portions
of cast ballots “showcases the frivolity of the Defendants own position…”
Proposed Surreply, p. 3.
Plaintiff seeks to re-argue the issue of whether copies of
ballots are to be treated the same as the
original ballots for purposes of CORA. Id. In so doing, Plaintiff takes exception to the fact
that the
Defendant facilitated the video recordings that broadcast 468 portions of
ballots while maintaining
that “it is no violation of law.” Id. at 4. Defendant, in fact, has made no
representation whatsoever as
to whether the video broadcast was in violation of the law,
improper, unwise, or anything to
characterize the decision to broadcast certain portions of some of the
ballots cast in the election.
Defendant’s position from the very start of this case has
been that the recording of portions of some
of the ballots does not constitute a waiver of every
voter’s right to a secret ballot. There can be no
Case No. 09 CV 294
Kathryn Koch’s Memorandum
in Opposition to Plaintiff’s Motion
for Leave to File Surreply
such waiver by
the Defendant or anyone else.
The real issue in the instant case, which Plaintiff attempts to ignore,
is whether §31-10-
616(1), C.R.S., clearly and unambiguously states that ballots shall
remain in the ballot box until
destroyed. To assert that copies of the ballots may be released for
public inspection renders this
provision meaningless and contrary to any reasonable and accepted rule of
statutory construction.
C.
Defendant’s argument that legislative facts may be used to
support her substantial
injury position requires no surreply from the
Plaintiff.
Plaintiff argues that the Defendant has made a “specious argument” in
suggesting that
legislative facts may be used to “displace
consideration of those material facts otherwise alleged by
the parties in the pleadings.” Proposed Surreply, p 5. The problem with
this proposed surreply to
Defendant’s argument is that Defendant has never made such a suggestion.
At no time has
Defendant suggested that legislative facts displace consideration of any
material facts. As indicated
in Defendant’s Reply Memorandum, “the court may
take judicial notice of legislative facts to
conclude that the release of ballots, or ballot images, will cause
substantial injury to the public
interest.” Reply Memorandum, p 21.
Plaintiff argues that there are material facts in dispute regarding
whether the public
inspection of ballots, or ballot images, would cause substantial injury
to the public interest. Plaintiff
simply misunderstands the balancing test required when a defense of
substantial injury to the public
interest is raised by a custodian denying a CORA request pursuant to
§24-72-204(a), C.R.S.
Plaintiff contends that the correct balancing test, and the material
facts to be considered by the court,
are the reasons advanced by the requestor in seeking to inspect public
records versus the facts
advanced by the custodian supporting a denial of public inspection on the
grounds that the public
Case No. 09 CV 294
Kathryn Koch’s Memorandum
in Opposition to Plaintiff’s Motion
for Leave to File Surreply
release of
public records would cause substantial injury to the public interest. As pointed out
in
Defendant’s original memorandum in support of her motion to
dismiss, there is no requirement that
a requestor provide a reason for inspecting public records.
Memorandum in Support of Motion to
Dismiss, p 3 (citing Denver Publishing Comp. v
Dreyfus, 520 P.2d 104, 108 (Colo. 1974) (CORA’s
public policy statement that all public records shall be open to public
inspection “eliminates any
requirement that a person seeking access to public records show a special
interest in those records in
order to be permitted to do so.”))
Plaintiff attempts to have this court weigh the Defendant’s
reasons for denying the requested
public documents against Plaintiff’s reasons for seeking to inspect them.
Plaintiff cites ¶¶ 4,5, 20,
22-23, 26-31, 39 of the Complaint for the proposition that the facts
alleged in those paragraphs “are
material to determining whether substantial injury to the public interest
will occur.” Proposed
Surreply, p 5. The cited paragraphs are alleged facts that seek to “show
a special interest in those
records” by the Plaintiff. As noted above, such a requirement is not
necessary and does nothing to
disprove that Defendant’s proposed legislative facts do, indeed,
“preclude any argument from the
Plaintiff that there are material facts in dispute in the case at bar.”
Plaintiff has filed a Response and
a Proposed Surreply. In neither of these pleadings has Plaintiff alleged
any facts to place in dispute
the legislative facts advanced by the Defendant to support her decision
to deny inspection of ballot
images as to do so would cause substantial injury to the public interest.
Merely arguing that there
are material facts in dispute is not sufficient; Plaintiff should be
required to at least allege what those
contrary facts might be.
Case No. 09 CV 294
Kathryn Koch’s Memorandum
in Opposition to Plaintiff’s Motion
for Leave to File Surreply
Defendant
respectfully urges this court to deny Plaintiff’s Motion for Leave to File a
Surreply Memorandum. Plaintiff has failed to demonstrate that
Defendant raised any legal
arguments or refer to any facts that were not included in previous
pleadings. Plaintiff’s
arguments in support of her motion are merely poor attempts to have the
last word.
DATED this 16th day of December, 2009
Respectfully
submitted,
Original signature on
file
John P. Worcester, #20610
City
Attorney
Original signature on
file
James R. True, #9528
Special Counsel
Case No. 09 CV 294
Kathryn Koch’s Memorandum
in Opposition to Plaintiff’s Motion
for Leave to File Surreply
Page 12
I hereby certify that on this 16th day of December, 2009, a true and correct copy of the
foregoing MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO
FILE A SURREPLY MEMORANDUM was filed electronically with LexisNexis® File
& Serve
to the following person(s):
Robert A. McGuire, Esq.
1624 Market
Street, Suite 202
Denver, Colorado 80202
Original signature on
file
Tara L. Nelson
JPW-12/16/2009-90624-G:\john\word\plead\Marks - CORA\memo opp to surreply.doc
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