DISTRICT COURT, PITKIN COUNTY,
COLORADO
Court Address:
506 E. Main, Suite 300
Aspen, Colorado 81611
Plaintiff(s):
MARILYN MARKS, a resident of
the City of Aspen,Colorado
v.
Defendant(s):
KATHRYN KOCH, City Clerk of
the City of Aspen,Colorado
COURT USE
ONLY
Attorney for
Plaintiff:
Robert A. McGuire
ROBERT A. MCGUIRE, ATTORNEY AT LAW, LLC
1624 Market Street, Suite 202
Denver, Colorado 80202
Case Number:
Phone Number: 303-734-7175 Div.: Ctrm.:
FAX Number: 303-734-7166
E-mail:
ram@lawram.com
Atty. Reg. #: 037134
VERIFIED COMPLAINT AND
APPLICATION FOR ORDER DIRECTING CUSTODIAN TO SHOW CAUSE
Plaintiff, Marilyn Marks, by and through her
undersigned counsel, Robert A.
McGuire,
Attorney at Law, LLC, for her Complaint against the Defendant, states as follows:
NATURE OF THE COMPLAINT AND APPLICATION
1. This is a civil action brought under the
Colorado Open Records Act (“CORA”), §
24-
72-201, et seq., C.R.S., in which the Plaintiff
applies to this Court for an order under §
24-72-
204(5), C.R.S., directing the Defendant to show
cause why the Plaintiff should not be permitted
to inspect approximately 2,544 individual computer
files containing the scanned graphical
images of anonymous ballots cast in the Aspen
municipal election held on May 5, 2009; and in
which the Plaintiff seeks injunctive relief
restraining the Defendant from destroying
or
permitting the destruction of the records sought by
the Plaintiff until after the final resolution of
this action, including the final resolution of all appeals.
2. Because the Defendant has improperly denied the
Plaintiff’s statutory right to inspect
these records, the Plaintiff seeks an award of
court costs and reasonable attorney fees under §
24-
72-204(5), C.R.S.
PARTIES, JURISDICTION, AND VENUE
3. The
Plaintiff, Marilyn Marks, is a resident of the City of Aspen, Colorado.
4. The
Plaintiff is a former candidate for mayor of the City of Aspen, who seeks to
obtain
certain public records that she needs in order adequately to assess the merits
of the instant-
runoff
voting (“IRV”) tabulation mechanism currently in use for elections in the City
of Aspen.
5. The
Plaintiff seeks to participate knowledgeably in Aspen’s ongoing public
debate
over IRV
and to learn enough about the IRV tabulation process to prepare appropriate
proposals
for
needed election reforms.
6.
Defendant Kathryn Koch is the City Clerk of the City of Aspen, Colorado.
Defendant
is sued
in her capacity as the custodian of the public records that the Plaintiff seeks
to inspect.
7. This
Court has jurisdiction over the subject matter at issue because this is a
civil
action,
Colo. Const. Art. VI, § 9(1), brought under § 24-72-204(5), C.R.S., which
specifically
confers
jurisdiction to hear the Plaintiff’s application upon this Court as the district
court of the
district
wherein the public records sought by the Plaintiff are found.
8. CORA
governs inspection of the public records sought by the Plaintiff because of its
general
statewide application and pursuant to Section 4.15 of the Home Rule Charter for
the City
of Aspen,
Colorado.
9. Venue
properly lies in Pitkin County, Colorado, pursuant to C.R.C.P. 98(c) because
the City
of Aspen, where the Defendant performs her official duties as custodian of the
records
sought by
the Plaintiff, is located in Pitkin County and because the Plaintiff resides in
Pitkin
County at
the time service of this Complaint is made there on the Defendant.
GENERAL ALLEGATIONS
10. The
Plaintiff incorporates by reference the foregoing paragraphs as if fully
rewritten
here.
11. The
City of Aspen conducted its most recent biennial municipal election on May
5,
2009,
pursuant to Section 2.2 of the Home Rule Charter of the City of Aspen, Colorado.
12. The
May 5, 2009, election was the first election conducted by the City of Aspen
under new
instant runoff voting rules established by the Aspen City Council for use in
the
mayoral
and two city council races.
13. On
election night, the tabulation of ballots under the new IRV rules was conducted
by
TrueBallot, Inc. (“TBI”), a Maryland corporation engaged in
the business of election and ballot
administration, under a Balloting Agreement between TBI and
the City of Aspen.
14. TBI’s
procedures for tabulating ballots in Aspen’s municipal election, a true and
complete
copy of which is attached hereto as Exhibit 1, consisted of a five-step process,
see Ex.
1, at 3,
that was performed collaboratively by TBI and election officials working
together on
election
night.
15. The
first step of the TBI tabulation process 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 file format (“TIFF”) under a unique filename that ended in a numbered
suffix
related
to the ballot’s sequential position in the scanning order. See id.
16. The
second and third steps of the TBI tabulation process involved extracting,
reviewing
and correcting voter rankings, not from the original paper ballots, but rather
from the
digital
photographic images generated by scanning in the first step of the tabulation
process. See
id.
17. The
fourth and fifth steps of the TBI tabulation process involved tallying the
results in
the
mayoral and city council races by performing further processing on the vote
rankings
extracted
from the images in the second and third steps. See id.
18. The
Defendant and/or the City of Aspen has, on information and belief, released
to
the
public all of the data created by TBI during the vote tabulation process, except
for the digital
photographic images created in the very first step of the
tabulation process.
19. TBI’s
written explanation of its procedures states that independent verification of
the
second
and third steps of the tabulation process is accomplished by comparing the data
extracted
in those
steps against the digital photographic images created in the first step. See id.
20.
Without access to the digital photographic images of the original paper
ballots,
therefore, independent verification of the tabulation
process is impossible.
21. The
Plaintiff, who ran in the election as a candidate for mayor of Aspen,
received
1,124
votes (or approximately 46.4% of the votes counted in the mayoral race), but was
defeated
by her
opponent, the incumbent mayor, who was credited with 1,301 votes (or 53.6% of
the
votes
counted).
22. The
Plaintiff is aware of irregularities that occurred in the May 5 election
involving
the IRV
tabulation procedure and the Defendant’s subsequent auditing of the tabulation
process
including, on information and belief, at least the
following:
On election night, TBI used a tabulation program configuration that was different
from the one it had tested in the public Logic and Accuracy Test and that reflected
the IRV tabulation rules of Cambridge, Massachusetts, instead of the IRV rules
approved for Aspen’s election by the Aspen City Council. As a result, the vote
tally reported in the Plaintiff’s mayoral race on election night was incorrect. See
Sally Spaulding, Press Release, Mayoral Vote Tally Corrected; Outcome Stays
the Same, May 28, 2009, attached hereto as Exhibit 2.
TBI informed the Defendant of this error on or about May 19, 2009, when three
days still remained in the statutory period for initiating an election contest, but the
Defendant did not act to make TBI’s error or the corrected vote totals known to
the community, the Election Commission or the candidates, including the
Plaintiff, until a full nine days later, or almost a week after the statutory period for
contesting the election had expired.
An “audit” of the ballots by the Defendant conducted on May 7, 2009, to “make
sure that the rankings on the ballots corresponded to the electronic records,” see
Ex. 2, at 2, was performed using a non-random selection from a subset of ballots
that excluded over 800 walk-in votes and approximately 239 mail votes (i.e.,
approximately 41% of the total mayoral votes counted) and thus is an inadequate
indicator of the accuracy of the second and third steps of TBI’s tabulation process.
23. In
order to precisely understand how this election worked, the Plaintiff desires
to
perform a
truly independent verification of the IRV tabulation procedure, and the
Plaintiff
therefore
requires access to the digital photographic images created and saved as TIFF
files
during the first step of TBI’s tabulation process.
THE PUBLIC RECORDS SOUGHT BY THE PLAINTIFF
24. The
Plaintiff incorporates by reference the foregoing paragraphs as if fully
rewritten
here.
25.
Approximately 2,544 TIFF files, each containing a digital photographic image of
a
single
ballot, were created by TBI during the tabulation process on election night.
26.
During the tabulation process, on information and belief, complete 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 that the Defendant and TBI
had set up in
the
tabulation center to facilitate both public observation and official review of
the tabulation
process.
27.
Members of the public in the tabulation center at City Hall, where TBI and
the
Defendant
performed the tabulation process, observed the projected images of many
individual
TIFF
files.
28. This
public accessibility conformed to TBI’s and the Defendant’s agreed
predetermined process for conducting the tabulation. See
Ex. 1, at 1 (“All steps performed by
TrueBallot will be publicly observable and will occur under
direction of city election officials.
Projectors can be attached to each of the TrueBallot
computers to make it easy for the audience
to follow
the steps.”)
29. 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.
30. A
recording of the Grassroots TV 12 election-night broadcast, including footage
of
ballot
images projected in the tabulation center, continues to be available for
download on the
Internet
at Show Detail: 2009 City of Aspen Municipal Election Coverage LIVE, (May 5,
2009)
http://vod.grassrootstv.org/cablecast/public/Show.aspx?ChannelID=1&ShowID=8097.
A
selection of four example frozen frames from this recorded broadcast, showing
four
photographic images of TIFF file contents that were
publicly disclosed during the tabulation, are
attached
hereto as Exhibit 3.
31. The
Defendant was aware that this public disclosure of the images of many individual
TIFF
files was happening on election night but, on information and belief, did not
object or
interfere.
32. On
information and belief, the 2,544 TIFF files created by TBI in the first step of
its
tabulation process conducted on May 5, 2009, are stored on
a computer disk that TBI provided to
the
Defendant after the tabulation of the Aspen election results was completed on or
about May
5, 2009.
33. On
information and belief, the disk containing these approximately 2,544
digital
photographic images of anonymous ballots is 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.
APPLICABLE PROVISIONS OF CORA
34. The
Plaintiff incorporates by reference the foregoing paragraphs as if fully
rewritten
here.
35.
Section 24-72-204, C.R.S., provides, in pertinent part, as follows:
(1) The custodian of any public records 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.
(b) Such inspection would be contrary to any federal statute or
regulation issued thereunder having the force and effect of law.
….
36.
Section 24-72-202, C.R.S., provides, in pertinent part, as follows:
(1.1) “Custodian” means and includes the official custodian or any authorized
person having personal custody and control of the public records in
question.
(2) “Official custodian” means and includes any officer or employee
of…any…political subdivision of the state…who is responsible for the
maintenance, care and keeping of public records, regardless of whether the
records are in his or her actual personal custody and control.
(5) “Political Subdivision” means and includes every…city…within this state.
(6)(a)(I) “Public records” means and includes all writings made, maintained, or
kept by…[a] political subdivision of the state…for use in the exercise of
functions required or authorized by law or administrative rule or involving
the receipt or expenditure of public funds.
(7) “Writings” means and includes…all…documentary materials, regardless
of physical form or characteristics. “Writings” includes digitally stored
data….
37.
Section 24-72-204(5), C.R.S., provides, in pertinent part, as follows:
…any person denied the right to inspect any record covered by this part 2 may apply
to the district court of the district wherein the record is found for an order directing
the custodian of such record to show cause why the custodian should not permit the
inspection of such record;
except that, at least three business days prior to filing an application with the district
court, the person who has been denied the right to inspect the record shall file a
written notice with the custodian who has denied the right to inspect the record
informing said custodian that the person intends to file an application with the district
court.
Hearing on such application shall be held at the earliest practical time.
Unless the court finds that the denial of the right of inspection was proper, it shall
order the custodian to permit such inspection and shall award court costs and
reasonable attorney fees to the prevailing applicant in an amount to be determined by
the court.
….
38. The
Plaintiff incorporates by reference the foregoing paragraphs as if fully
rewritten
here.
39. On
June 1, 2009, the Plaintiff, seeking to assess IRV implementation at the May
5,
2009,
Aspen municipal election for purposes of participating in future public debate
on Aspen’s
use of
the IRV voting method, submitted a request to the Defendant under the Colorado
Open
Records
Act, § 24-72-201, et seq., C.R.S., seeking to inspect “the complete tiff images,
including
tiff file
names of the ballots from the May, 2009 election.” A true and correct copy of
this
request
is attached hereto, and incorporated, as Exhibit 4.
THE DEFENDANT’S DENIALS OF THE PLAINTIFF’S
RIGHT
OF INSPECTION UNDER CORA
40. The
Plaintiff incorporates by reference the foregoing paragraphs as if fully
rewritten
here.
41. On
June 4, 2009, counsel for the Defendant denied the Plaintiff’s CORA request
to
inspect
digital photographs created from ballots, citing as grounds a state statute that
provides for
the
safekeeping of, and restricts physical access to, actual ballots, § 31-10-616,
C.R.S. A true
and
correct copy of this letter is attached and incorporated as Exhibit 5.
42. The
Defendant’s letter of June 4 also cited as grounds for denying the Plaintiff’s
right
of
inspection the City’s obligation to ensure the constitutional guarantee of a
secret ballot, Colo.
Const.
Art. VII, § 8. See Ex. 5.
43.
Subsequent private correspondence between the Plaintiff and the Defendant’s
counsel
showed
that the Defendant had adopted the legal view that the TIFF files, although not
ballots
themselves, were to be regarded as “ballots” for purposes
of § 31-10-616(1), C.R.S.
44. On
July 9, 2009, for example, counsel for the Defendant reiterated the
Defendant’s
denial of
the Plaintiff’s right of inspection on the basis of § 31-10-616, C.R.S., by
stating that “if
we are
prohibited from providing direct access to the ballots, we also cannot provide
access to
the
images.” A true and correct copy of this email is attached and incorporated as
Exhibit 6.
45. The
Defendant in subsequent correspondence with the Plaintiff also cited as grounds
for
denial the Defendant’s concern that anonymity of the ballots would be
jeopardized by
disclosure of TIFF files showing write-in votes written in
personally identifiable handwriting.
46.
During July, the Plaintiff noted that the City had posted on its official
website a
statement
under the link “Why has City staff denied a citizen’s request to inspect the
ballot
images
from the last municipal election?” that appeared to be intended as a public
response to the
Plaintiff’s CORA request. A true and correct copy of this
statement is attached and incorporated
as
Exhibit 7.
47. The
Defendant’s public statement disputed the significance of the prior public
disclosure of TIFF files on election night; and reiterated
the Defendant’s concern, as grounds for
denial,
that anonymity of the ballots in the election would be jeopardized if the TIFF
files were
disclosed
to the Plaintiff. The statement stated: “Anonymity, or secrecy, is guaranteed
only by
ensuring
that the ballots, and copies of the ballots, are kept completely secure and
eventually
destroyed.” See Ex. 7, at 2.
48. The
Plaintiff also noted further public statements made in July and August by
identified officials of the City of Aspen apparently
setting forth grounds for the Defendant’s
denial of the Plaintiff’s right to inspect the TIFF files, including the following:
“There are ways that those anonymous ballots could become identifiable. Simply
if people put a mark in the corner or something they would recognize their ballot.
Later on you could identify whose ballot is whose." See Aspen: Ballots are
exempt from state open records law, Face The State (July 31, 2009)
http://facethestate.com/articles/17853-aspen-ballots-are-exempt-state-open-records-law
(statement of John Worcester, counsel for Defendant).
“Although ballots cast don’t include the voter’s name, it’s possible the ballot
could be otherwise identified if the voter made some distinctive marking on the
ballot.” See Curtis Wackerle, City Sticks to Position Not to Release Ballots,
Aspen Daily News (Aug 12, 2009)
http://www.aspendailynews.com/section/home/136054
(statement of City of Aspen Mayor Mick Ireland)
“[I]t might be possible for someone to run a sophisticated calculation matching
voter rolls with the order in which ballots were cast. If this were to happen, the
city would be in clear violation of the law for releasing the ballots.” See Curtis
Wackerle, More Calls for Release of Ballots, Aspen Daily News (Aug. 24, 2009),
http://www.aspendailynews.com/section/home/136238 (statement by counsel
for Defendant Jim True).
“It is correct to refer to the ballots as being ‘anonymous,’ but only as long as they
remained locked up. State laws that prohibit the release of ballots seek to
guarantee that no one can discern anyone else’s ballot after they have been cast.
This preserves the anonymity of the ballots.” See Sally Spaulding, City Responds
to Ballot Issue, Aspen Times (Aug. 27, 2009)
http://www.aspentimes.com/article/20090827/LETTER/908269987 (letter to the
editor by the Community Relations Director of the City of Aspen).
49. The
Defendant’s concern (expressed through counsel and by several other Aspen
officials
apparently on the Defendant’s behalf) that the Plaintiff’s inspection of the
requested
records
might threaten ballot secrecy to the extent that some voters could have made
distinctive
markings
on their ballots disregards the fact that it is illegal in Colorado for a voter
to mark his
own
ballot so as to render it identifiable, both for elections held under the
Colorado Municipal
Election
Code, § 31-10-1517, C.R.S., and for elections held under the Uniform Election
Code of
1992, §
1-13-712(1), C.R.S.
50.
Furthermore, the Defendant’s broader concern that the Plaintiff’s inspection of
the
requested
records might threaten ballot secrecy generally can only be understood to mean
that
the
Defendant believes the ballots used by the City of Aspen contain some kind of
information
that
makes them personally identifiable.
51. If it
is indeed the Defendant’s position that the ballots are somehow inherently
personally identifiable (through inspection of the TIFF
files), then the ballots themselves must
violate
the anonymity in balloted voting that is required by Article VII, Section 8, of
the
Colorado
Constitution.
52. The
proper remedy for such a patterned violation of the constitutional requirement
of
ballot
secrecy is not for the Defendant to engage in a prophylactic denial of the
Plaintiff’s right
to
inspect public records under CORA, but is, rather, for this Court to perform its
“duty” of
declaring
any such tainted election to be void ab initio. See Taylor v. Pile, 154 Colo.
516, 523
(1964).
53.
Voiding the election is not the relief that the Plaintiff requests in this
action, but it is
the only
relief properly warranted if the Defendant insists the TIFF files cannot be
inspected by
the
Plaintiff consistently with ballot anonymity.
54. The
Colorado Constitution’s guarantee of secrecy in voting means that a voter’s
ballot
should not be personally identifiable to anyone, including the government. To
the extent
that the
Defendant asserts that the constitutional provision for secrecy in voting will
be violated
by
allowing the Plaintiff to inspect the requested records, that secrecy must
already be breached
by virtue
of the government’s own possession of those same records.
55.
Without conceding any merit in the Defendant’s assertion that the
Plaintiff’s
inspection of the TIFF files might somehow threaten ballot
secrecy, the Plaintiff nevertheless
offered
on July 20, 2009, to narrow her request expressly to exclude any TIFF files
showing
write-in
votes (this July correspondence, with the Defendant’s reply, is attached and
incorporated
as
Exhibit 8); and again offered on September 15, 2009, to narrow her request to
permit the
Defendant
to withhold altogether any TIFF image that the Defendant reasonably believed
to
show
markings that compromised the anonymity of the original paper ballot associated
with that
TIFF file
(this September correspondence, with the Defendant’s reply, is attached and
incorporated as Exhibit 9).
56. Both
of the Plaintiff’s proposed narrower versions of her CORA request were denied
by the
Defendant through counsel on substantially the same grounds as set out in the
Defendant’s
initial
denial and in the statements publicly made by City officials and referred to
above. See Ex.
8; Ex. 9.
57.
Foreseeing the likelihood that the Plaintiff would need to seek an application
to this
Court for
an Order under § 24-72-204(5), C.R.S., on August 27, 2009, the Plaintiff,
through her
undersigned counsel, wrote the Defendant advising of the
Plaintiff’s intent to file this action
pursuant
to CORA based upon the Defendant’s repeated denials of the Plaintiff’s CORA
request.
A true
and correct copy of this letter is attached and incorporated as Exhibit 10. This
letter
provided
the three business days notice required pursuant to § 24-72-204(5), C.R.S., that
the
Plaintiff
intended to seek judicial relief in this Court in the absence of the
Defendant’s
production of the records sought.
58. As of
the date of filing of this action, the Defendant continues to refuse to permit
the
Plaintiff
to inspect the public records at issue.
DEFENDANT’S INTENTION TO DESTROY RECORDS
59. The
Plaintiff incorporates by reference the foregoing paragraphs as if fully
rewritten
here.
60. The
Defendant has communicated to the Plaintiff publicly and through counsel that
she
considers herself obliged to destroy the TIFF files sought by the Plaintiff on
or around
November
5, 2009, because of the Defendant’s view that the records sought are equivalent
to
actual
ballots and because § 31-10-616(1), C.R.S., requires ballots to be destroyed six
months
after an
election. See Ex. 9, at 1.
61. Based
on the Defendant’s view that the records sought are equivalent to ballots,
the
Defendant
may also at any time adopt the view that she is required to destroy the TIFF
files by
the
Plaintiff sooner than November 5, 2009, since the second trigger for mandatory
destruction
of
ballots in § 31-10-616(1), C.R.S., occurs when “the time has expired for which
the ballots
would be
needed in any contest proceedings,” and such time may already have expired.
62.
Plaintiff contends that the records sought are not “ballots,” including for
purposes of
§
31-10-616(1), C.R.S., but are instead “official election records” for purposes
of § 31-10-
616(2),
C.R.S.
63.
Official election records must be preserved “for at least six months following
a
regular
or special election” (emphasis added), § 31-10-616(2), C.R.S., but their
continued
preservation thereafter appears to be at the discretion of
the Defendant.
64. The
Plaintiff reasonably anticipates that this action will not reach a final
resolution,
including
the final resolution of all appeals, on or before November 5, 2009.
65. The
TIFF files sought by the Plaintiff as public records are therefore in danger
of
being
destroyed by the Defendant unless this Court orders the Defendant to refrain
from
destroying such records.
66. On
information and belief, the Defendant possesses the only copy in existence of
the
records
sought that are subject to the Plaintiff’s right of public inspection under
CORA.
67. On
information and belief, the operational burden and expense borne by the
Defendant
as a result of preserving one or more computer disks are negligible.
68. On
information and belief, the Defendant would suffer no damage or costs if she
were
obliged
to continue to preserve the computer disk(s) that contain the records sought by
the
Plaintiff
for the duration of this action.
CLAIM FOR RELIEF
(Application for Order Directing Custodian to Show Cause
under § 24-72-204(5), C.R.S.)
69. The
Plaintiff incorporates by reference the foregoing paragraphs as if fully
rewritten
here.
70. The
Plaintiff is a “person” entitled to inspect public records under §
24-72-204(1),
C.R.S.
71.
Because the records requested by the Plaintiff are digitally stored data that
constitute
“writings”, § 24-72-202(7), C.R.S., that are “made,
maintained or kept” by a “political
subdivision” of the State, for use in the exercise of the
functions required or authorized by law,
the
records requested by the Plaintiff are “public records.” See §
24-72-202(6)(a)(I), C.R.S.
72. The
Defendant as City Clerk of the City of Aspen is, pursuant to § 31-10-616(2),
C.R.S.,
the official custodian and a “custodian” of the public records sought by the
Plaintiff. See
§
24-72-202(1.1), C.R.S.
73. The
Defendant is unable to establish that the public records sought by the Plaintiff
are
exempt
from the Plaintiff’s right of inspection established by § 24-72-204(1), C.R.S.
74.
Because the Defendant has previously permitted the public disclosure of the
public
records
sought by the Plaintiff, the Defendant cannot now in good faith deny the
Plaintiff’s right
of
inspection of those same records.
75. The
Plaintiff gave the Defendant more than three business days written notice of
the
Plaintiff’s intention apply to this Court, pursuant to §
24-72-204(5), C.R.S., before she filed this
Verified
Complaint and Application For Order Directing Custodian To Show Cause.
76.
Pursuant to § 24-72-204(5), C.R.S., the Plaintiff is now entitled to and does
hereby
apply for
an Order directing the Defendant to show cause why the Defendant should not
permit
inspection of the public records sought by the Plaintiff.
77. The
Plaintiff is now entitled to a hearing on this application “at the earliest
practical
time,” as
provided by § 24-72-204(5), C.R.S.
DEMAND FOR TEMPORARY RESTRAINING ORDER AND
PRELIMINARY INJUNCTIVE RELIEF
78. The
Plaintiff incorporates by reference the foregoing paragraphs as if fully
rewritten
here
79. The
Plaintiff requests that this Court enter a temporary restraining order and
preliminary injunction restraining the Defendant from
destroying or permitting the destruction of
the
records sought by the Plaintiff until after the final resolution of this action,
including the final
resolution of all appeals.
80. There
is a reasonable probability that the Plaintiff will prevail on the merits, since
the
records
sought by the Plaintiff are within the meaning of “public records” as defined in
CORA,
§
24-72-202(6)(a)(I), C.R.S., and the records sought are not subject to any
exception to the
Plaintiff’s right of inspection set out in the CORA statute
or established by other applicable law.
81. If
the Defendant were to destroy the records sought before the final resolution of
this
action on
the merits, such destruction would cause a real, immediate, and irreparable
injury to the
Plaintiff
in the form of a permanent frustration of the Plaintiff’s right to inspect the
destroyed
public
records.
82. There
is no plain, speedy, and adequate remedy at law sufficient to protect the
Plaintiff’s rights other than the injunctive relief hereby
requested, because the Defendant may,
unless
enjoined by this Court, at any moment destroy the records sought by the
Plaintiff and
render
the Plaintiff’s action moot.
83. The
temporary restraining order and preliminary injunction requested, if issued,
would not
be adverse to the public interest because neither would impair the interests or
rights of
persons
not parties to this action.
84. At
the same time, both the temporary restraining order and preliminary
injunction
would
prevent the Defendant from frustrating the judicial remedy established by §
24-72-204(5),
C.R.S.,
which exists specifically to protect members of the public, like the Plaintiff,
from
improper
denials by custodians of the right to inspect public records.
85. The
injury to the Plaintiff threatened by the Defendant’s destruction of the
records
sought
greatly outweighs whatever damage the proposed temporary restraining order
and
preliminary injunction may cause the Defendant, since the
Defendant will suffer, at most,
negligible costs or damages as a result of being enjoined
from destroying the records, even if the
Defendant
is wrongfully enjoined or restrained until the final resolution of this action.
86. The
injunctive relief requested by the Plaintiff will preserve the status quo
pending a
final
resolution of this action on the merits, since the Defendant already serves as
the current
custodian
of the records sought by the Plaintiff and would continue to do so if enjoined
by this
Court
from destroying those records until after the final resolution of this action.
87. A
temporary restraining order and preliminary injunction are appropriate under
C.R.C.P.
65 and should be granted by the Court.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff Marilyn Marks respectfully requests that the Court will:
a. Schedule a hearing “at the earliest practical time” on the Plaintiff’s application for an
Order directing the Defendant to show cause why the Defendant should not permit the
inspection of the records sought by the Plaintiff; and on the Plaintiff’s demand for a
temporary restraining order and preliminary injunction;
b. Enter forthwith an Order directing the Defendant to show cause in the form of the
attached [Proposed] Order Granting Application for Order Directing Custodian to Show
Cause;
c. Enter forthwith a temporary restraining order in the form of the attached [Proposed]
Order Granting Temporary Restraining Order;
d. Enter a preliminary injunction in the form of the attached [Proposed] Order Granting
Preliminary Injunction;
e. Schedule a hearing at which the Defendant shall show cause;
f. Unless the Defendant is able to show cause, enter an Order directing the Defendant to
permit inspection of the records sought by the Plaintiff as required by § 24-72-204(5),
C.R.S.;
g. Unless the Defendant is able to show cause, award the Plaintiff her court costs and
reasonable attorney fees as required by § 24-72-204(5), C.R.S.; and
f. Award such other relief as the Court deems just and proper.
Respectfully submitted this 8th day of October, 2009.
By: S/
Robert A. McGuire_______________
Robert A.
McGuire, Reg. No. 37134
1624
Market Street, Suite 202
Denver,
Colorado 80202
(303)
734-7175
(303)
734-7166 Fax
ram@lawram.com
Attorney for Plaintiff Marilyn Marks
Plaintiff’s Address:
930 West
Francis Street
Aspen,
Colorado 81611
VERIFICATION
)
) ss.
)
STATE OF
COLORADO
COUNTY OF PITKIN
I,
Marilyn R. Marks, after having read and examined the above, state that the above
and
foregoing
VERIFIED COMPLAINT AND APPLICATION FOR ORDER DIRECTING
CUSTODIAN
TO SHOW CAUSE is true and correct to the best of my knowledge.
S/
Marilyn Marks_______________
[Name and
title]
SUBSCRIBED AND SWORN TO before me this 8th day of October,
2009, by Marilyn Marks.
Witness
my hand and official seal.
My
commission expires: 12/8/2011
S/ Monica
Clukey
Notary
S/ Monica
Clukey
S/ Notary
Public
S/ State
of Colorado