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Pitkin County Courthouse
506 East Main Street, Suite E
Aspen, Colorado 81611
COURT USE ONLY
Plaintiff:
Marilyn Marks,
Defendant:
Case Number: 09 CV 294
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
KATHRYN KOCH’S
MEMORANDUM IN SUPPORT OF MOTION TO DISMISS
Comes now the Defendant, Kathryn Koch, by and through
her undersigned counsel, and hereby
submits the following memorandum in support of her
Motion to Dismiss.
The City of Aspen’s Memorandum
in Support of Motion to Dismiss
Kathryn Koch’s Motion to Dismiss is brought pursuant
to Rule 12(b)(5), C.R.C.P., for failure
to state a claim upon which relief can be granted and is predicated
on the contention that all of
Plaintiff’s factual allegations in the Complaint are presumed to be
true. This case can, and
should, be decided on the pleadings. This case presents a question
that can be decided by
applying the law to the facts as alleged in the Complaint and
presumed to be true for purposes of
this motion: Does the Colorado Open Records Act, §§24-72-101.1,
et seq., C.R.S.,
(“CORA”)
require the city clerk of the City of Aspen to make available for
public inspection the images of
the ballots cast at the May 2009 municipal election held in the City of Aspen?
The purpose of a Rule 12 (b)(5) motion to dismiss a complaint for
failure to state a claim upon
which relief can be granted is to test the formal sufficiency of
the complaint. Dunlap v
Colorado
Springs Cablevision, 829 P.2d 186, 1290 (Colo. 1992). In deciding a
motion to dismiss, all
averments of material fact must be accepted as true,
Shapiro & Meinhold v
Zartman, 823 P.2d 120,
122 (Colo. 1992), and construe them in light most
favorable to the plaintiff. Titan
Indemnification
Comp. v Travelers Property Casualty Comp. of
Am., 181 P.303, 306 (Colo.App.2007), cert. denied,
2008 WL 1777405 (Colo. Apr. 21, 2008);
Popovich v
Ireland, 811 P.2d 379 (Colo. 1991).
Notwithstanding that courts may disfavor the granting of a motion to
dismiss, Dunlap, supra, the
claim before the court in the case at bar should be dismissed as the
Plaintiff is not entitled to any
relief “upon any theory of the law.” Hinsey v Jones, 411 P.2d 242,244 (Colo. 1966) (emphasis
in
original).
Case No. 09 CV 294
The City of Aspen’s Memorandum
in Support of Motion to Dismiss
III.
MATERIAL FACTUAL
ALLEGATIONS
Plaintiff’s Complaint and Application for Order to Show
Cause (“Complaint”) consists of
fourteen pages and 68 paragraphs of factual averments, legal conclusions,
and quotations of
documents and statutes. Only the averments of material fact should be
considered by this court
for purposes of this motion. Those factual averments that are material to
Plaintiff’s claims are
summarized below. The remaining statements, even if assumed to be true
for purposes of this
motion, are simply not material, relevant or germane to the case at bar,
consist of legal
conclusions of counsel for the Plaintiff, or are quotations from or
references to documents and
state statutes.
The second part of paragraph 4, and paragraphs 5, 20 - 23, and 39 of the
Complaint are
factual averments, but they are simply not relevant to the case at bar.
They attempt to explain
why the Plaintiff wants to inspect the ballot images. For example, “she
needs [the ballot images]
to assess the merits of the instant runoff voting (‘IRV’) tabulation
mechanism currently in use for
elections in the City of Aspen.” Complaint, ¶4. And, “[t]he
Plaintiff seeks to participate
knowledgeably in Aspen’s ongoing public debate over IRV…” Complaint, ¶5.
These stated
reasons may well be admirable reasons for wishing to inspect the ballot
images, but they are not
relevant to the matter before the court. Persons seeking to inspect
public records subject to
CORA do not need to provide a reason. That right is guaranteed to them by
the CORA without
any requirement that the requestor provide a reason for inspecting the
public records.
Denver
Publishing Comp. v Dreyfus, 520 P.2d 104, 108 (Colo. 1974) (CORA’s public policy statement
Case No. 09 CV 294
The City of Aspen’s Memorandum
in Support of Motion to Dismiss
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.”)
Paragraphs 30, 35 - 37, and 46 - 48 consist of quotations of documents or
state statutes or
references to those documents and are not averments of material fact. For
example, paragraphs
35 - 37 consist of quotes directly
from various sections of the CORA. Paragraphs 33, 49 - 54, and
62 - 64, are merely legal
conclusion of counsel for the Plaintiff and are of no probative value to
the court.
The remaining factual averments of the Complaint contain sufficient
relevant content that
the court should properly consider them to be true for purposes of this
motion:
x
The Plaintiff is a citizen of the City Aspen who was a
losing candidate for Mayor
at the last municipal election held in the City of Aspen. Complaint, ¶¶
3, 4 & 11.
x
The Defendant is the City Clerk of the City of Aspen and
the custodian of the
ballot images that Plaintiff seeks to inspect. Complaint, ¶ 6.
x
The City of Aspen conducted its first municipal election
“under new runoff voting
rules” on May 5, 2009, pursuant to Section 2.2 of its Home Rule
Charter.
Complaint, ¶¶ 6 & 12.
x
On election night, the tabulation of ballots was conducted
by TrueBallot, a
Maryland corporation engaged by the City of Aspen to conduct the
tabulation of
ballots in accordance with certain procedures agreed to beforehand by the
City
and TrueBallot. Complaint, ¶¶ 13 thru 17, and 19.
x
In accordance with those procedures, the first step “was to
scan the original paper
ballots cast in the election and save each resulting digital photographic
image as a
single computer file in tagged image format (‘TIFF’)…” Complaint, ¶
15.
x
A final step in the tabulation procedure was to have
TrueBallot create data of all
the ballots and release all of that data to the public “except for the
digital
Case No. 09 CV 294
The City of Aspen’s Memorandum
in Support of Motion to Dismiss
photographic images created in the very first step of the tabulation
process.”
Complaint, ¶ 18.
x
“Approximately 2,544 TIFF files, each containing a digital
photographic image of
a single ballot, were created by [TrueBallot] during the tabulation
process on
election night.” Complaint, ¶ 25.
x
“[C]omplete or partial contents of each of the 2,544
individual TIFF files were
disclosed to the public at least once by projection for approximately 1-3
seconds
onto large video screens” in the tabulation center at city hall.
Complaint, ¶¶ 26-27.
x
“A large number of the projected images showing contents of
TIFF files were also
broadcast live to the public on Grassroots TV Channel 12 in Aspen.”
Complaint,
¶ 29.
x
“The Defendant was aware that this public disclosure of the
images of many
individual TIFF files was happening on election night, but did not object
or
interfere.” Complaint, ¶ 31.
x
The 2,544 TIFF files created by TrueBallot are stored on a
computer disk and kept
by the Defendant. Complaint, ¶¶ 32 and 33.
x
Plaintiff submitted a request to the Defendant under CORA
“seeking to inspect
‘the complete tiff images, including tiff file names of the ballots from
the May,
2009, election.” Complaint, ¶ 39.
x
Counsel for the Defendant denied the CORA request on
grounds that §31-10-616,
C.R.S., prohibited the release of the ballots and ballot images, Colo.
Const. Art.
VII, §8 obligates the city to protect the right to a secret ballot, and
ballot images
are no different than the actual ballots and can’t be publicly released
for the same
reasons. Complaint, ¶ 41 thru 45.
x
Plaintiff subsequently amended her CORA request to exempt
from public
inspection all ballot images that contain write-in candidates’ names and
further
narrowed her CORA request to allow the Defendant to exclude all ballot
images
that contained “markings that compromised the anonymity of the original
paper
ballot associated with that TIFF file.” Complaint, ¶ 45 and ¶ 55.
x
The amended CORA requests were denied for essentially the
same reasons given
previously. Complaint, ¶ 56.
Case No. 09 CV 294
The City of Aspen’s Memorandum
in Support of Motion to Dismiss
x
Plaintiff wrote to the Defendant indicating that she would
seek a court order
pursuant to CORA to obtain access to the public records she repeatedly
sought to
inspect. Complaint, ¶ 57.
x
The Defendant, through counsel, has repeatedly indicated
that the City Clerk
would destroy the ballots and ballot images in accordance with
§31-10-616,
C.R.S. six months after the May 2009 municipal election. Complaint, ¶¶
60-61.
x
The Defendant possesses the only copy in existence of the
records sought by the
Plaintiff and the “operational burden and expense borne by the Defendant
as a
result of preserving one or more computer disks are negligible.”
Complaint, ¶¶ 66-
67.
Plaintiff argues that the CORA requires that images of
ballots, cast in the May 2009,
municipal election in the City of Aspen, be made available for public
inspection. The CORA
itself provides two separate justifications for the city clerks’ refusal
to publicly disclose the
images of the ballots. First, § 24-72-204(1)(a), C.R.S., states that the
custodian of any public
record shall not allow public inspection of those records if “such
inspection would be contrary to
any state statute.” As noted below, §31-10-616, C.R.S., specifically
prohibits the city clerk from
making available for public inspection the ballots, or images of the
ballots. Second, an additional
exception to public disclosure is found at Section 24-72-204(6)(a),
C.R.S. That section of the
CORA requires the custodian of a public record to refuse to disclose a
public record if in her
opinion “disclosure of said record would do substantial injury to the
public interest.” For
the
reasons that follow, the city clerk has properly exercised her legal duty
to not release ballots or
ballot images for public inspection as she has compelling reasons to
believe that to do so would,
in fact, be contrary to a state statute and, additionally, cause
substantial injury to the public.
Case No. 09 CV 294
The City of Aspen’s Memorandum
in Support of Motion to Dismiss
A.
State law requires the city
clerk to keep secure and secret all ballots, and ballot
images, cast in a municipal election.
The public
policy behind CORA is set out in the legislative declaration of policy:
It is declared to be the public policy of this state that all public
records shall
be open for public inspection by any person at reasonable times, except …
as otherwise specifically provided
by law.”
§24-72-201 C.R.S. (emphasis added.) There is no dispute
between the parties hereto that ballots,
and ballot images, are “public records” within the meaning
of the CORA.
1. CORA exempts the public inspection of public records that
would be contrary to any
state statute.
Section 24-72-204, C.R.S., reads in relevant part as
follows:
24-72-204. Allowance or
denial of inspection – grounds – appeal –
definitions. (1) The custodian
of any public record shall allow any person
the right of inspection of such records or any portion thereof except on
one
or more of the following grounds, or as provided in subsection (2) or (3)
of
this section:
(a) Such
inspection would be contrary to any state statute.
This section of the CORA sets forth a number of exceptions
to the general rule that all
public records are to be made available for public inspection. The very
first exception quoted above
is any public record the public inspection of which “would be contrary to
any state statute.” Thus, if
any other state law requires that a public record be kept confidential or
secret, then the CORA does
not require that record to be made available for public inspection.
2. The Colorado Constitution and state statutes prohibit the
public disclosure of ballots
and ballot images.
Both the state constitution and state statutes prohibit the public
disclosure of ballots and
copies of ballots cast in an election. That prohibition
stems from a desire to protect the right of
The City of Aspen’s Memorandum
in Support of Motion to Dismiss
citizens to a
secret ballot. It is axiomatic that every citizen in Colorado and the City of
Aspen has a
constitutional and statutory right to cast his or her vote in
secret.
Article VII, Section 8, of the
Colorado Constitution reads as follows:
Section 8. Election by
ballots or voting machines.
All elections by the people shall be by ballot, and in case paper ballots
are
required to be used, no ballots shall be marked in any way whereby
the
ballot can be identified as the ballot of the person casting it. The
election
officers shall be sworn or affirmed not to inquire or disclose how any
elector
shall have voted. In all cases of contested election in
which paper ballots are
required to be used, the ballots cast may be counted and
compared with the
list of voters, and examined under such safeguards and regulations as may
be
provided by law. Nothing in this section, however, shall be construed
to
prevent the use of any machine or mechanical contrivance for the purpose
of
receiving and registering the votes cast at any election, provided that
secrecy
in voting is preserved.
“The leading object of this section [Section 8] was to
preserve the purity of the election.”
People ex rel. Barton v
Londoner, 22 P.2d 764 (Colo. 1889). Indeed Section 11 of the same
article of the Colorado Constitution commands the state legislature to
“pass laws to secure the
purity of elections, and guard against abuses of the elective franchise.”
Pursuant to that mandate,
the state legislature has enacted the Colorado Election Code, §§ 1-1-101,
et seq., C.R.S., and the
Colorado Municipal Election Code, §§ 31-10-101, et seq., C.R.S.
[1 ] , that contain numerous
provisions to ensure the purity of elections. In reviewing each of these
election codes, it is readily
apparent that the legislature was concerned about two principal issues
surrounding ballots. The
first concern was ensuring the physical security of the ballots before
the election, during the
voting process, throughout the tabulation process, the verification or
auditing process, and finally
[1]
In accordance with the City of Aspen Home Rule Charter,
city elections are governed by the Colorado Municipal Election Code as amended by ordinances adopted by the City
Council.
The City of Aspen’s Memorandum
in Support of Motion to Dismiss
the post election period during which time law suits contesting the
election could be filed. The
second concern expressed in these state statutes is ensuring every
citizen the right to a secret
ballot. In other words, the concerns surround both the physical security of ballots and
safeguarding the secrecy of the content or information contained on the
ballots. “The principal
object of the rules of procedure prescribed by statute for conducting an
election is to protect the
voter in his constitutional right to vote in secret; to prevent fraud in
balloting and secure a fair
count.” Littlejohn v Desch, 121 P.2d
159 (Colo. 1912) (quoting from Young v Simpson, 42
P.
666, 667 (Colo. 1895).
Examples of statutes expressing a concern over the physical security of ballots are reflected
throughout the Municipal Election Code. Some examples of that concern
include the following
statutes: §31-10-604, C.R.S., requires ballot boxes to be securely locked
during voting and not be
reopened until the time for counting; §31-10-610, C.R.S., requires
extensive safeguards when
opening the ballot boxes and counting the ballots and thereafter ensuring
their safekeeping in a
“carefully sealed” and locked ballot box before delivering the boxes to
the city clerk; and, §31-
10-901, C.R.S., describes the type of ballot boxes to be used and how
they must be secured to
avoid “tampering.”
Examples of statutes expressing a concern about securing the secrecy of
the contents or
information contained on ballots include: §31-10-504, C.R.S., which
requires voting booths to be
designed so that “ballots are screened from observation”; §31-10-505,
C.R.S., limiting the
number of persons allowed within the voting booth area; §31-10-607,
C.R.S., requiring that
The City of Aspen’s Memorandum
in Support of Motion to Dismiss
ballots be folded by voters “without displaying the marks thereon” before
depositing the ballot in
a ballot box; §31-10-1514, C.R.S., making it a crime for any election
official who aids a disabled
voter from revealing how the disabled voter voted; and,
interestingly,
§31-10-1517, C.R.S.,
which also makes it a crime for any voter from revealing his or her own
completed ballot to
another person or to “place any mark upon his ballot by means of which it
can be identified.”.
3. Making ballot images available for public inspection is
prohibited by Section 31-10-
616(1),
C.R.S.
Section 31-10-616(1), C.R.S., indicates a desire to not only preserve the
physical security
of ballots, but also to secure, in perpetuity, the secrecy of the
information that can be gleaned
from cast ballots. This state statute specifically prohibits the city
clerk from making available for
public inspection the ballots, or images of the ballots, cast in the last
municipal election in
Aspen, absent a court order issued in the course of an election contest.
This statute reads, in
relevant part, as follows:
31-10-616.
Preservation of ballots and election records.
(1) The
ballots, when not required to be taken from the ballot box for the
purpose of election contests, shall remain in the ballot box in the
custody
of the clerk until six months after the election at which such ballots
were
cast or until the time has expired for which the ballots would be needed
in
any contest proceedings, at which time the ballot box shall be opened
by
the clerk and the ballots destroyed by
fire, shredding, or burial, or by any
other method approved by the executive director of the department of
personnel. …
(2) The clerk
shall preserve all other official election records and forms for
at least six months following a regular or special election.
(emphasis added.) This statute is not ambiguous and leaves no room for
doubt as to its meaning:
the city clerk shall ensure that cast ballots remain secure and secret
for a period of six months
Case No. 09 CV 294
The City of Aspen’s Memorandum
in Support of Motion to Dismiss
after an election and thereafter destroy them. The only exception is in
the event they are required
in an election contest.
4. Ballot images should be treated no differently than the
original ballots.
Plaintiff suggests in her Complaint that ballot images are “currently
being kept and
maintained as ‘other official election records’ by the Defendant in
Pitkin County pursuant to
section 31-10-616(2), C.R.S.” Complaint, ¶ 33. The implication is that
since ballot images are
not the “ballots” referenced in §31-10-616(1), C.R.S., they must
necessarily be “other official
election records” referenced in §31-10-616(2), C.R.S., and therefore, not
subject to the mandate
that ballots be destroyed. In other words, copies of ballots are somehow different than original
ballots and therefor need not be destroyed and are subject to public
inspection. This is a frivolous
argument. It is akin to arguing that a document classified as “Top
Secret” by the federal
government loses its security classification upon being xerographically
or digitally copied.
It is certainly true that making ballot images, as opposed to the ballots themselves,
available for public inspection would not compromise the physical
security of the original
ballots. However, the concerns about ballot secrecy is not lessened one
iota by releasing ballot
images rather that the ballots themselves. The state law requirement that
ballots be destroyed by
“fire, shredding or burial” by the city clerk after any chance for an
election contest reveals this
overarching concern for the preserving the secrecy of the contents of the
ballots. Following an
election and after the time has expired for an election contest, there is
no valid reason to be
concerned with the physical security of the ballots. The only logical
reason the law requires that
ballots be destroyed is to protect the secrecy of the contents of the
ballots and the privacy of
Case No. 09 CV 294
The City of Aspen’s Memorandum
in Support of Motion to Dismiss
voters for all time. Thus, the city clerk is equally charged with
protecting any copies or images of
the ballots that might have been created in the course of the tabulation
process. The law does not
provide for opening the ballot box to permit the public to inspect the
ballots pursuant to a CORA
request even after the time has expired for filing election contests in
court. Similarly, the law
should not be interpreted to allow the city clerk to allow the public to
inspect ballot images. At
the end of the six month period, the city clerk is mandated to destroy
the ballots and any ballot
images. It would be absurd to allow the City Clerk to make copies of the
ballots, permit her to
only destroy the actual ballots and not the images, and then release for
public inspection the
ballot images. It is not the form of the document (copy or original) that
determines whether it
should be kept confidential, but the content of the document itself.
In City of Westminster v Dogan
Construction Co., 930 P.2d 585 (Colo. 1997), the Supreme
Court held that a statutory exception to CORA disclosure for “letters of
reference concerning
employment” under section 24-72-204(3)(a), C.R.S., applied to
questionnaires filled out by
government employees checking references provided by a prospective
contractor. Employing a
content-based analysis, the court determined that although the
questionnaires at issue were not
“letters”, the contents of the questionnaires were still exempt from
disclosure. Id. at 592. See
also, Ritter v Jones, 207 P.3d
954, 959 (Colo. App. 2009) (“Our precedent eschews strict
attention to form and mandates a content-based inquiry into CORA
disclosure exceptions.”)
5. The public display of portions of some ballot images on election night
cannot
constitute
a waiver of voters’ rights to a secret ballot.
Plaintiff states in her Complaint that “[b]ecause the Defendant has
previously permitted
Case No. 09 CV 294
The City of Aspen’s Memorandum
in Support of Motion to Dismiss
the public disclosure of the public records sought by the Plaintiff
[ballot images], the Defendant
cannot now in good faith deny the Plaintiff’s right of inspection of
those same records.”
Complaint ¶74. This statement appears to
suggest that the city clerk, by allowing portions of
some ballot images to be displayed to the public, somehow “waived” the
right of all the voters in
the City of Aspen to their rights to a secret ballot. Thus, apparently,
Plaintiff argues that the city
clerk should now publicly disclose all the ballot images since the
statutory exception to CORA
disclosure and the mandate to destroy all ballots in accordance with
§31-10-616(1), C.R.S., no
longer apply.
The argument that the city clerk can waive every voter’s right to a
secret ballot by
partially disclosing ballot images as part of the tabulation process is
seriously flawed. The
concept of waiver is appropriate when discussing various privileges
recognized by the common
law and state statutes. For example, the attorney-client or
physician-patient relationships may
create privileges for confidential information. These privileges,
however, are not absolute and
may be waived by the person for whom the privilege is created. For
example, a client may waive
the attorney-client privilege and a patient may waive the
physician-patient privilege. In either
case, only the person for whom the benefit is created may waive the
privilege. See generally, 1
McCormick on Evid. §93 & 103
(6 th
Ed.); 6 Colo. Prac., Civil Trial Practice §7.3 (2d
Ed.)
Moreover, even if a particular privilege is subject to a waiver, the
waiver does not necessarily
amount to a general disclosure, … but rather a limited [disclosure].”
Cardenas v Jerath, 180 P.3d
415, 424 (Colo. 2008).
The right to a secret ballot, however, may not be waived; and if the
right could be waived,
Case No. 09 CV 294
The City of Aspen’s Memorandum
in Support of Motion to Dismiss
it certainly would not fall upon the city clerk to exercise. The city
clerk simply does not have the
legal authority to waive the right of all the voters in Aspen to a secret
ballot. Indeed, not even
voters may waive the statutory prohibition against revealing their own
ballot to another person.
See, §31-10-1517, C.R.S. Thus,
even if some ballot images were publicly displayed “onto large
video screens,” there can be no “waiver” of the contents of the ballots.
The city clerk continues to
have a legal duty to secure the ballots, and ballot images, for a period
of six months and
thereafter destroy them as mandated by §31-10-616, C.R.S.
6. CORA should be read in pari materia with §31-10-616(1),
C.R.S.
The CORA does not conflict with the requirement that ballots remain
secret and not made
available for public inspection. The CORA specifically
exempts from the requirements of the
Act the public inspection of records that “would be contrary to any state
statute.” §24-72-204(1),
C.R.S. In the instant case, making available ballot images for public
inspection would be contrary
not only to a state statute, but our state constitution. The CORA should
be read in pari materia
with §31-10-616(1), C.R.S., and construed together to hold that ballots,
and ballot images, are
not required to be made available for public inspection pursuant to CORA
because §31-10-
616(1), C.R.S., mandates that they be secured for six months following an
election and thereafter
destroyed.
Even if it is determined that CORA does, in fact, conflict with the
requirements of §31-10-
616, C.R.S, the Colorado Supreme Court has repeatedly and consistently
held that general
legislation does not repeal specific laws unless the intent to do so is
clear and unmistakable.
Goslinger v Denver Election
Commission, 552 P.2d 1010 (Colo. 1976) (the general Colorado
Case No. 09 CV 294
The City of Aspen’s Memorandum
in Support of Motion to Dismiss
Public Meeting Law did not divest home rule city of its specific
constitutionally granted plenary
power to deal with municipal elections); Associated Students of University of Colorado v
Regents
of University of Colorado, 543
P.2d 59 (Colo. 1975) (because special constitutional and statutory
authority is granted to regents empowering it to supervise University of
Colorado, the Colorado
Open Meeting Law did not preclude regents from entering into executive
sessions); People v
Burke, 521 P.2d 783 (Colo.
1974) (general probation statute did not repeal mandatory sentence
provisions of earlier enacted statute governing specific offense of
driving under the influence);
Denver v Rinker, 366 P.2d 548
(Colo. 1961). The CORA is general legislation whereas §31-10-
616, C.R.S., is a specific law requiring that ballots be secured for a
specific period of time after
an election and thereafter destroyed. In sum, the CORA cannot be held to
override the specific
statute requiring election materials to be preserved and destroyed by the
city clerk.
7. The mandatory destruction of cast
ballots is not unique to Colorado.
Section 31-10-616, C.R.S., is not unique to Colorado. Many states have
similar statutes
that require the custodian of ballots and other election materials to
keep them secure for a period
of time and thereafter, absent a court order, to destroy them. See, e.g., State ex rel. Schmeding v
District Court, 271 N.W. 137
(N.D., 1937) (power of subpoena does not authorize an order for
the production of ballots required to be kept secure for 4 months
following an election); Miller
v
O’Malley, 117 S.W.2d 319 (Mo.,
1938) (court refused to make ballots available to grand jury
investigating election fraud even though they were still available
following the time statute
required their destruction); Parks v
Taylor, 678 S.W.2d 766 (Ark., 1984) (court refused to order
recount of ballots even though the ballots had not been destroyed 2 years
after the election in
Case No. 09 CV 294
The City of Aspen’s Memorandum
in Support of Motion to Dismiss
violation of statute requiring destruction of ballots after 6 month);
In re Post, 17 A.2d 326
(Vermont 1941) (statute requiring clerk to keep ballots securely sealed
for three years after
election is mandatory); Miller v
Price, 86 S.W.2d 152 (Ky. App. 1935) (county clerk has duty to
destroy ballots within certain period of time absent court order to the
contrary); In Re Primary
Election of 1936, 1940 WL 2321
(Pa.Com.Pl. 1936) (ballot boxes are to be preserved for 11
months and thereafter may be destroyed;
accordingly, court lacks jurisdiction to order
preservation of election records 14 months after an election). See, generally 29 C.J.S. Election
§356 (Preservation and disposition of ballots.)
In 2008, the
Georgia Supreme Court was required to decide a case remarkably similar to
the
case at bar. In Smith v
DeKalb County, 654 S.E. 2d 469 (Ga. App. 2007) cert.
denied (Mar. 10,
2008), the court was asked to determine whether a request under the
Georgia open records act
should be honored. The request was for CDs generated in a
recent election to “include all ballot
images and ballot styles ... from the election management system.” Id. at 470. The open records
request was opposed on two separate grounds: First, Georgia’s open
records law excludes from
public disclosure those records which “by law are
prohibited or specifically excluded from being
open to inspection by the general public.” Id. at 472. Second, the request was denied since the
CDs
requested were exempt from the state open records law as
they contained “material which if made
public could compromise security against sabotage,
criminal, or terrorist acts.” Id.
The court ruled that the CDs containing ballot images were not subject to
public disclosure as
Georgia has a law similar to Colorado’s that requires election materials,
including ballots and ballot
images, to be “maintained under seal
following an election for at least 24 months , unless otherwise
Case No. 09 CV 294
The City of Aspen’s Memorandum
in Support of Motion to Dismiss
directed by a
superior court” and then destroyed. Id at
471. “Because the CD-ROM is statutorily
designated to be kept under seal, it is by law prohibited or specifically
exempted from being open to
inspection by the general public and, therefore, is not an
open record subject to disclosure.” Id.
at
472. The court
further agreed with the trial court that release of the CD-ROMs “could
compromise
security against sabotage, criminal, or terrorist acts.”
Id. (The CD-ROMs apparently contained
security encryption technology.) While the city clerk in the case at bar
does not argue that the
release of the Aspen ballots would compromise our national
security, she does argue, as did the
custodian of the ballot images in Georgia, that the law excludes ballot
images from public
disclosure and, as argued below, that the public interest and potential
for substantial injury should
be given serious consideration before any ballots, or copies of ballots,
are released for public
inspection.
B. Making ballots available for public inspection would do
substantial injury to the
public interest.
Section 24-72-204(6), C.R.S., reads, in relevant part, as
follows:
24-72-205. Allowance or denial of inspection – grounds –
procedure
– appeal – definitions. …
(6)(a)
If, in the opinion of the official custodian of any public record,
disclosure of the contents of said record would do substantial injury to
the
public interest, notwithstanding the fact that said record might
otherwise
be available to public inspection … the official custodian may apply to
the
district court … for an order permitting him or her to restrict such
disclosure. …
(b) In defense against an application
for an order under subsection (5)
of this section, the custodian may raise any issue that could have
been
raised by the custodian in an application under paragraph (a) of this
subsection (6).
Plaintiff has brought her Complaint under the CORA seeking an order from
the court
The City of Aspen’s Memorandum
in Support of Motion to Dismiss
requiring the city clerk to make available for public inspection images
of the ballots cast at the
last municipal election. The city clerk, as the official custodian of the
ballots and ballot images,
seeks to avail herself of subsection (6)(b) as set forth above “in
defense against an application for
an order” from the court [2] . In doing so, the city clerk accepts
that to rely on this “defense” she has
the burden of proving that the release of the ballots would do
substantial injury to the public
interest. Zubeck v El Paso County Retirement
Plan, 961 P.2d 597 (Colo. App. 1998.)
A review of court decisions that address this issue have uniformly
indicated that the task
before the court is to balance CORA’s general presumption in favor of
public access to public
records versus the public interest asserted to be injured by the release
of the public records. For
example, in Denver Post
Corp. v University of Colorado, 739 P.2d 874 (Colo. App. 1987), the
custodian refused to disclose the
results of certain internal
investigations of university
employees. The court held that “[a]gainst the privacy interests at stake
must be weighed the Act’s
general presumption in favor of public access.” See also, Daniels v City of Commerce City,
Custodian of Records, 988 P.2d
648, 651 (Colo. App. 1999) and Denver Publishing Company
v
University of Colorado, 812
P.2d 682 (Colo. App. 1991.)
A “substantial injury to the public interest” is not defined in the CORA.
However, the
public interests involved in the present case are compelling and evident;
and, the injuries that will
[2] If the court decides that §31-10-616(1), C.R.S., creates a
statutory exception to CORA, the court need not decide
whether making ballot images available for public
inspection would do substantial injury to the public interest.
Denver Publishing Company v Board of County Commissioners
of Arapahoe County, 121 P.3d 190, 203-204 (Colo.
2005).
Case No. 09 CV 294
The City of Aspen’s Memorandum
in Support of Motion to Dismiss
be caused to those public interests if ballot images are made available
for public inspection are
also self evident and substantial. The city clerk asserts that the public
release of the ballot images
from the last municipal election would not only be against the law, but
would cause substantial
injury to the public interest. The public interest that the city clerk is
most concerned with is the
preservation of citizens’ constitutional and statutory rights to a secret
ballot in the recently
completed municipal elections and, perhaps more importantly, in all
future elections to be held in
the City of Aspen. When citizens’ rights to a secret ballot are weighed
against CORA’s stated
public policy of ensuring public access to certain public records, the
right to a secret ballot must
surely carry greater weight.
The public right to know ought not be absolute when its exercise
reveals
private political convictions. Secrecy, like privacy is not per se
criminal.
On the contrary, secrecy and privacy as to political preferences and
convictions are fundamental in a free society. For example, one of
the
great political reforms was the advent of the secret ballot as a
universal
practice.
Buckley v
Valeo, 424
U.S. 1 (1976.)
2. The Public Interest – The right to cast a secret
vote.
The public
interest advanced by the city clerk is quite obviously substantial and
compelling.
The U.S. Supreme Court has recognized that the “right to
vote freely for the candidate of one’s
choice is of the essence of a democratic society.”
Reynolds v Sims, 377 U.S. 533,
555 (1964).
Indeed,
No right is more precious in a free country than that of
having a voice in the
election of those who make the laws under which, as good
citizens, we must
live. Other rights, even the most basic, are illusory if the right to
vote is
undermined.
Case No. 09 CV 294
The City of Aspen’s Memorandum
in Support of Motion to Dismiss
Wesberry v
Sanders,
3676 U.S. 1 (1964).
The right to cast a secret vote is the “right to vote one’s conscience
without fear of
retaliation.” McIntyre v
Ohio Elections Commission, 514 U.S. 334, 343 (1995.) The right
ensures
that “there should be privacy in the preparation of the
ticket by a voter, so that he might exercise his
own volition in the choice of candidates, and that he might
feel, when he is preparing the ballot to
express his volition or election as to the different candidates, that he
is free from all observation by
the prying eyes of those who might be interested in having him vote for
certain other candidates.”
State v Carswell, 50 S.E. 2d
621, 624 (Ga. App. 1948) “The right is ‘an important and valuable
safeguard for the protection of the voter, and particularly the humble
citizen, against the influence
which wealth and situation may supposed to exercise.’ The right to
secrecy encompasses not only
the right to cast one’s vote in private, but also the right to maintain the confidentiality of one’s vote
following an election.” Greene v Marin County Flood Control and Water Conservation
District,
91
Cal.Rptr.3d 27 (Cal. App. 2009) (citations
omitted)(emphasis added.)
The U.S. Supreme Court has recognized that a state “indisputably has a
compelling interest in
preserving the integrity of the election process.” Eu v San Francisco County Democratic Central
Committee, 489 U.S. 214, 231
(1989). See also, Burson v Freeman, 504 U.S. 191 (1992)
(Tennessee statute prohibiting campaigning within 100 feet
of polling place was narrowly tailored
to serve compelling state interest in preventing voter
intimidation and election fraud); Citizens
for
Police Accountability Political Committee v
Browning, 572 F.3d 1213 (11th Cir., 2009) (statute
prohibiting exit solicitation about issue not on the ballot within 100
feet of polling places in
Case No. 09 CV 294
The City of Aspen’s Memorandum
in Support of Motion to Dismiss
Florida did not violate First Amendment).
The State of
Colorado has recognized the public interest at issue as well. As noted
previously, infra at
7-8, Colorado has guaranteed to its citizens the right to a secret ballot in
its
constitution and its legislature has enacted numerous statutes to
preserve the integrity of the election
process. See, infra at. 8-10.
Particularly, among those statutes is §31-10-616, C.R.S. which requires
the city clerk, absent a court order to the contrary, to secure the
ballots and ballot images and
destroy them after six months from the date of the
election. As early as 1895 the Colorado Supreme
Court recognized that state statutes enacted to prescribe
the procedures for conducting elections
were intended to protect voters’ constitutional right to vote in secret.
See, Young v Simpson, 42 P.
666 (Colo. 1895). See also,
Taylor v Pile, 391 P.2d 670, 673 (Colo. 1964) (even in the context of
an election contest, the “constitutional and statutory right to cast a
secret ballot carries with it the
accompanying right to refuse to testify as to how or for what the vote
was cast.”)
3.
The Public Interest –
Finality in the results of elections.
There is one further interest that has been recognized by the courts in
Colorado that would be
affected if ballot images are made available for public inspection.
Courts in Colorado have
recognized that an important interest is achieved by the destruction of
all election materials
including ballots, and ballot images, after the period of time has lapsed
for any court contest to be
filed and adjudicated. That public interest is having finality in the
result of elections. State statutes
allow any registered voter to contest the outcome of an election,
§31-10-1301, C.R.S., but the
contest must be filed within a certain period of time
following the election. §31-10-1303, C.R.S.
(Within 10 days after the expiration of the period which a
recount may be requested or after the
The City of Aspen’s Memorandum
in Support of Motion to Dismiss
recount,
whichever is later.)
Even in an election contest, courts will not order the
opening of a ballot box absent some
evidence of fraud or tampering of ballots. “To order the opening of
ballot boxes in every election
contest, and to order a recount of the ballots in every case merely
because it is asked, without a
proper basis therefor, would invite a contest after every election, no
matter how honestly and
efficiently conducted.” Gray v
Huntley, 238 P. 53, 56 (Colo. 1925); See also,
Kindel v LeBert, 48
P. 641 (Colo. 1897) (“Where the grounds of an election contest are fraud
and mistake, it is not
error to refuse to allow the ballot boxes to be opened, and a recount
had, until some testimony is
offered tending to establish such fraud.”)
History demonstrates the importance of the secret ballot and, for the
purposes of the case at
bar, evidences the substantial injury to the public interest that would
ensue by the public release of
ballots or ballot images cast in municipal elections. The
U.S. Supreme Court in Burson,
supra at
200-206
(1992), documents the problems of intimidation and
electoral fraud that led to the adoption
of the secret ballot by all 50 states [3]. The opinion describes that in the early years of our
nation,
voters expressed their preferences orally or by a showing
of hands. When paper ballots were
introduced in the late 1700’s individuals prepared their
own handwritten ballots at home, marked
them, and took them to the polling place. Later, political
parties and candidates printed their own
specially colored or designed paper ballots for voters to
use. None of these methods was secret and
[3] The Constitution of West Virginia still permits voters the
option to cast “open ballots.”
The City of Aspen’s Memorandum
in Support of Motion to Dismiss
all were open
to widespread intimidation of voters, fraud, and violence [4]. Id at 203.
“Polling places on Election Day often were ‘scenes of battle, murder and
sudden death.’ In
addition to real violence, sham battles were staged to frighten away the
elderly and timid voters.”
George v Municipal Election
Commission of the City of Charleston, 516 S.E.2d 206 (S.C.
1999)(quoting from Burson,
supra.) To combat violence and corruption, most states adopted
measures to guarantee the secret ballot. The reasons most
often given to explain the importance of
the secret ballot are:
To reduce or eliminate the potential intimidation of voters, to reduce
or
eliminate the chance for voters who are willing to sell their votes to
prove
they have ‘delivered the goods’ by allowing someone to watch them
cast
their ballot, and to ensure the overall integrity of the electoral
process.
Burson, supra, at 210.
As discussed previously, Colorado adopted the “Australian
system” [5] in 1877 with the
incorporation of Article VII, Section 8, into its
Constitution and the state legislature enacted
numerous state statutes to secure the purity of elections
and guard against abuses of the elective
franchise.
See infra at 8-10. “The success
achieved through these reforms was immediately noticed
and widely praised. … One commentator remarked of the New
York law of 1888: ‘We have
[4]Before the secret ballot it was widely believed that to be
seen voting and having one’s vote noted by all who were
present was to be accountable for one’s choice. Secrecy was
seen as having something to do with selfishness.
The spirit of vote by ballot – the interpretation likely to
be put on it in the mind of an elector
- is that suffrage is given to him for himself; for his
particular use and benefit, and not as a
trust for the public. … Instead of opening his heart to an
exalted patriotism and the
obligation of public duty, it awakens and nourishes in him
the disposition to use a public
function for his own interest, pleasure, or caprice; the
same feelings and purposes, on a
humbler scale, which actuate a despot and oppressor.
Bertrand, The Hidden
History of the Secret Ballot, 2006, Indiana University Press, pg. 51.
[5]It was commonly called the “Australian system” at the time
of its adoption because it was first used in that country.
The City of Aspen’s Memorandum
in Support of Motion to Dismiss
secured
secrecy; and intimidation by employers, party bosses, police officers,
saloon-keepers and
others has come to an end.’ …” Id. at 204.
“In sum, an examination of the history of election
regulation in this country reveals a
persistent battle against two evils: voter intimidation and election
frauds. After an unsuccessful
experimentation with an un-official ballot system, all 50 states, together with numerous Western
democracies, settled on the same solution: a secret ballot. …” Id. at 206. (emphasis added.)
5. The Substantial Injury to the
Voters of Aspen.
Plaintiff has argued repeatedly that the ballot images she
wants to inspect are anonymous as
they do not contain any information that can be used to reveal the names
of the voters who cast the
ballots. Complaint, ¶¶ 45-54. Indeed, Plaintiff argues that the law
prohibits voters or anyone from
marking ballots in any way that can be used to identify the voter.
Complaint, ¶51.
Plaintiff is
correct.
Colorado Constitution, Article VII, Section 8, states as follows: “…no
ballots shall be
marked in any way whereby the ballot can be identified as the ballot of
the person casting it.”
Section 31-10-1517, C.R.S., states that “[n]o voter shall place any mark
upon his ballot by means of
which it can be identified as the one voted by him, and no other mark
shall be placed upon the
ballot to identify it after it has been prepared for voting.” So, the
argument continues, since the
ballots are required by law to be anonymous, there should
be no concern regarding ballot secrecy.
The problem with this analysis is that the law makes no such assumption
about the anonymity of
ballots and our history of past election abuses shows that
merely prohibiting an activity does not
prevent it from happening. “Intimidation and interference laws fall
short of serving a State’s
Case No. 09 CV 294
The City of Aspen’s Memorandum
in Support of Motion to Dismiss
compelling
interests because they ‘deal with only the most blatant and specific attempts’
to impede
elections.” Burson,
supra at 207 – 208. (citing Buckley, supra at 28
– “the existence of bribery
statute does not preclude the need for limits on contributions to
political campaigns.”) Plaintiff’s
argument herein makes as much sense as telling property owners not to
bother locking their front
doors as there are laws against burglary.
The U.S. Supreme Court has repeatedly addressed the right of the State to
adopt
prophylactic measures even in the absence of evidence of specific evils
sought to be addressed by
the legislation at issue. “[B]ecause a government has such a compelling
interest in securing the right
to vote freely and effectively, this court never has held a
State ‘to the burden of demonstrating
empirically the objective effects on political stability
that [are] produced’ by the voting regulation in
question.” Burson, supra at 208 -109
(citing Munro v Socialist Workers Party 479 U.S.
189, 195
(1986).) “Legislatures, we think, should be permitted to
respond to potential deficiencies in the
electoral process with foresight rather than retroactively,
provided that the response is reasonable
and does not significantly impinge on constitutionally protected
rights.” Burson, supra at 209
(emphasis in original) (quoting from Munro, supra at 195-196.) The Colorado State
Legislature
has concluded that the only way to guarantee that ballots cast in an
election will remain anonymous
is to insist that the ballots are physically secured and their contents
kept secret until destroyed as
provided by law. This is evidenced by the adoption of
§31-10-616, C.R.S., which requires ballots
and other election materials to be held in the custody of
the city clerk for six months after the
election and then destroyed.
The instant case involves a request for the images of ballots cast in the
last municipal
The City of Aspen’s Memorandum
in Support of Motion to Dismiss
election. If
the ballot images are publicly released, however, the injury will be to not only
the voters
who cast their ballots in the most recent election, but also to all
future voters in municipal elections.
The precedent will have been set that ballots cast in
municipal elections will be made available for
public inspection in all subsequent elections. The concerns about
publicly revealing secret ballots
may be slightly different for voters in the last election
than for voters in the future; however, if the
ballot images currently in the custody of the city clerk, or any future
ballots, are public disclosed,
the injury to the public interest will be serious and substantial in each
situation.
6. The substantial injury to voters in the last
election.
The Plaintiff may be correct in assuming that the voters in the last
municipal election had no
reason to intentionally mark their ballots. There simply was no reason
for anyone to intentionally
mark their own ballot or someone else’s ballot unless the
person knew in advance that the ballots,
or images of the ballots, would be disclosed to the public
after the election. Since the City did not
indicate that a century old practice of not making the
ballots available for public inspection would
be changed, there was no reason for anyone to intentionally
mark their ballots in a manner that
could be used to identify their ballot.
It is quite possible, however, that voters in the last election did not
intentionally mark their
ballots in a distinguishing manner, but did so
unintentionally. For example, some voters may have
used a pencil or a pen instead of a black magic marker
provided at the polling booth. Some voters
may have unintentionally marked their ballots by filling in the ovals on
the ballots in a distinctive
manner not realizing that their ballots could be identified
following the election. While most voters
follow the general instructions given at polling places
directing voters to completely fill in the
Case No. 09 CV 294
The City of Aspen’s Memorandum
in Support of Motion to Dismiss
appropriate
ovals on the ballot; many, however, may have marked their ballots with the use
of a
check mark, a slash, a cross, or simply a small scribble
within the oval. Each of these marks may be
considered a valid vote as they indicate the clear intent
of the voters who cast them, but they can
also be used to help identify those same voters.
The Plaintiff has limited her request to ballot images that do not
contain write-in candidates.
She has apparently recognized that some voters may have unintentionally
“marked” their ballots in
a manner that can be used to identify them. It should be noted that the
Plaintiff, not the law, has
carved out this exception to her CORA request. She has not, however,
recognized that many ballots
may have other distinguishing features that could be used to identify
individual voters. The
difficulty with any such revised request, even if it was a permitted
exception to the CORA, would
be that election officials are in no position to review each and every
ballot or ballot image to
determine if they contain extraneous marks that can be used to identify
individual voters. Moreover,
there are no standards for election officials to use to determine which
distinguishing features of a
ballot can be used to identify an individual voter and
which are not. If a ballot contains a stray
mark, was it intentionally placed on the ballot or was it
simply the result of a voter determining if
the magic marker was working? Should that voter’s vote be nullified and
his or her franchise to
vote denied?
7. The substantial injury to
voters in all future elections.
A more substantial injury would be done to Aspen voters in
future elections if ballots, or
images of ballots, were made available for public inspection following
each election. If ballots were
made available for public inspection at the conclusion of
all future elections, then there would,
Case No. 09 CV 294
The City of Aspen’s Memorandum
in Support of Motion to Dismiss
indeed, be an
incentive for voters to improperly mark ballots. Poll watchers and other
election
officials may succumb to the temptation of their own curiosity and mark
the ballots of particular
voters to determine how they voted after all the ballots or ballot images
were made available for
public inspection. Voters receiving ballots at home in
mail-in elections could mark their spouse’s
ballots to see at a later date how their spouse’s voted. Of even more
concern, all of the abuses that
the guarantee of a secret ballot seeks to prevent,
including intimidation and election fraud, would
surely creep back into Aspen’s municipal elections.
A person wishing to surreptitiously mark a ballot could
simply put an inconspicuous mark
anywhere on the ballot; such as a dot over a particular
letter in a candidate’s name, filling in a letter
in a candidate’s name, or simply placing a mark in the
corner of the ballot. One can hardly expect
election officials to “catch” every effort that may be used
to improperly identify ballots after the
election. Even if election officials could discover such ballots, how
would they determine which
marks are errant marks innocently placed on the ballot and which are
deliberate attempts to corrupt
the process? Election officials should not be given unbridled authority
to declare such ballots void
and disenfranchise a voter for innocently marking his or her ballot. If
ballots or ballot images are
not publicly disclosed following each election, the dilemma posed by the
discovery of extraneous
marks on ballots would be significantly minimized. If no one but the
voter and a small handful of
election officials ever see the ballot, an extraneous mark,
however innocently made, cannot play a
nefarious role.
The Utah Supreme Court in Evans v
Reiser, 2 P.2d 615 (Utah 1936), describes in great
detail the difficulty election officials and courts may
have in determining which markings made by
Case No. 09 CV 294
The City of Aspen’s Memorandum
in Support of Motion to Dismiss
a voter are
“expressly authorized by law” and which require the entire ballot to be
disregarded. “[I]t
is difficult to perceive how those whose duty it is to
count the ballots may ascertain the purpose the
voter had in marking a ballot in a manner not authorized by
law.” Id. at 623-624. That court
understood the problem between valid markings to cast a vote and those
marks intentionally made
for improper purposes. “It should here be noted that a mark
upon a ballot which, upon its face,
appears insignificant and innocently made, may serve an
ulterior purpose as readily as a glaring and
suspicious mark.” The State of Colorado has minimized the dilemma of
trying to have election
officials determine the motive behind a mark that may not perfectly
comply with the authorized
marks on a ballot. It guarantees that all ballots, and images of ballots,
will not be publicly disclosed
after an election, thereby precluding the proof needed to consummate an
illegal sale of a vote.
There is one additional injury that would be caused to the public in the
future if ballots, or
ballot images, were made available for public inspection
following every election. This particular
injury may well be the most critically important to avoid.
The citizens of Colorado have come to
expect over the last hundred plus years that their ballots would be kept
secret and not revealed to
anyone. That absolute
certainty in the secrecy of their ballot has given voters the confidence to
vote
their conscience. They have, in the past, properly assumed that they will
not be intimidated or
retaliated against because of the way they voted. That absolute certainty
would be eroded if ballots
were open to public inspection following each election. The obvious
consequence would be the
disenfranchisement of a significant portion of voters in all future
elections because of the loss of
confidence in the election process for all time.
Case No. 09 CV 294
The City of Aspen’s Memorandum
in Support of Motion to Dismiss
After stripping away all of Plaintiff’s factual allegations that are
immaterial and irrelevant
to the case at bar, what is left are two arguments: (a) that an image of
a ballot is not the same as an
original ballot; and, (b) the public display of a portion of some ballot
images somehow makes all
ballot images subject to public inspection. These arguments are
quintessential examples of
elevating form over substance. The Plaintiff has failed to state a claim
upon which relief can be
granted. Accordingly, Defendant respectfully urges this court to dismiss
the Plaintiff’s Complaint
pursuant to C.R.C.P. Rule 12b(5) and vacate the preliminary
injunction so as to allow the city clerk
to proceed with her duty to destroy all election materials
including the original ballots and the ballot
images from the May 2009 municipal election in the City of Aspen.
DATED this 6th day of November, 2009
Respectfully submitted,
Original signature on file
John P. Worcester, #20610
City Attorney
James R. True, #9528
Special
Counsel
Case No. 09 CV 294
The City of Aspen’s Memorandum
in Support of Motion to Dismiss
I hereby certify that on this 6th day of November, 2009, a true and correct copy of the
foregoing MEMORANDUM IN SUPPORT OF MOTION TO DISMISS mailed postage
prepaid
in the U.S. Mail and filed electronically with Nexis/Lexis to the
following person(s):
Robert A. McGuire, Esq.
1624 market Street, Suite 202
Denver, Colorado 80202
ram@lawram.com
Original signature on
file
Tara L. Nelson
JPW-11/6/2009-142848-G:\john\word\plead\Marks - CORA\memo in suppoprt of motion to dismiss.doc