KATHRYN KOCH'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO FILE A SURREPLY

                           DISTRICT COURT, PITKIN COUNTY, STATE OFCOLORADO

                           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”.)

                                                                                  I.            INTRODUCTION

                                  For the reasons that follow, Plaintiff’s Motion for Leave to File a Surreply to Defendant’s


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                        Kathryn Koch’s Memorandum

                        in Opposition to Plaintiff’s Motion

                        for Leave to File Surreply

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                        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


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                        Kathryn Koch’s Memorandum

                        in Opposition to Plaintiff’s Motion

                        for Leave to File Surreply

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                        alleged any new facts or relied on any new legal arguments in support of her position. Thus,

                        Plaintiff’s motion should be denied.

 

                                                                                      II.  ARGUMENTS

                                       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


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                        Kathryn Koch’s Memorandum

                        in Opposition to Plaintiff’s Motion

                        for Leave to File Surreply

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                        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


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                        Kathryn Koch’s Memorandum

                        in Opposition to Plaintiff’s Motion

                        for Leave to File Surreply

                        Page 5

                        “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


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                        Kathryn Koch’s Memorandum

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                        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


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                        Kathryn Koch’s Memorandum

                        in Opposition to Plaintiff’s Motion

                        for Leave to File Surreply

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                        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


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                        Kathryn Koch’s Memorandum

                        in Opposition to Plaintiff’s Motion

                        for Leave to File Surreply

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                        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


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                        Kathryn Koch’s Memorandum

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                        for Leave to File Surreply

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                        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


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                        Kathryn Koch’s Memorandum

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                        for Leave to File Surreply

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                        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.

 

                                                                                    III.     CONCLUSION


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                        Kathryn Koch’s Memorandum

                        in Opposition to Plaintiff’s Motion

                        for Leave to File Surreply

                        Page 11

                                       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

 

                                                                                CERTIFICATE OF SERVICE

 

                             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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