City looks to hit Marks with $70K legal billby Curtis Wackerle, Aspen Daily News Staff Writer
In a motion filed Thursday in Pitkin County District Court, the city said that attorney John Worcester spent 129 hours on the case, while special counsel Jim True spent 45 hours on the case. Although Worcester and True are both on salary, another Aspen attorney, Maria Morrow, wrote in an affidavit that attorneys of Worcester and True’s “skill and experience” could reasonably bill out at the rate of $385 “in this area for a claim of this nature.” This brings the total attorneys’ fees to $67,047.
The city also is requesting reimbursement for $3,800 in filing fees, copies and the time an expert witness spent preparing for a hearing that never happened. The city paid E. Scott Adler, a political science professor at the University of Colorado, $3,500 for 20 hours of work ($175 per hour) preparing to be the city’s expert witness. He was going to testify at a hearing as to why releasing the ballot images would be illegal and counter productive. Marks’ suit was dismissed a few days before the hearing took place.
On March 10, Judge James Boyd granted the city’s motion to dismiss Marks’ lawsuit, citing a state law that requires ballots in municipal elections to be kept in the possession of the city clerk. Marks sued the city after it denied her open records request to inspect TIFF images — digital copies — of the ballots in an effort to audit election results. Marks is appealing the decision. She reports racking up at least $70,000 in legal fees of her own pursuing the case.
If the city is to be reimbursed, a judge will have to find that Marks’ suit is “frivolous, vexatious or groundless.” In its motion, the city argues that Marks’ suit meets those standards because Marks “never articulated a rational argument based on the law that would justify ignoring the plain language of the statute. This is by definition a frivolous claim.”
On Wednesday, Marks filed a motion asking Boyd to reconsider his decision. The motion, filed by Robert McQuire, Marks’ Denver-based attorney, places new emphasis on the argument that the photographic scans of the ballots that Marks is seeking are fundamentally different from the ballots themselves, which are protected under the law. Boyd rejected this argument. But in Wednesday’s motion, Marks states that her original complaint “does not allege that the TIFF files are, in fact, accurate representations of the original paper ballots.”
This line tweaked the city attorneys, who cite it in their motion for attorneys’ fees as an example of “bad faith.”
“As the court noted in its order granting the defendant’s motion to dismiss, the complaint alleges that the TIFF files are ‘digital photographs of the ballots,’” the city wrote in it’s motion. “To assert that this is anything other than what the complaint alleges, a ‘photograph of the ballot,’ is disrespectful of the truth.”