http://www.aspendailynews.com/section/home/139875
City looks to hit Marks with $70K legal bill
by Curtis Wackerle, Aspen Daily News Staff WriterFriday, March 26, 2010
The city of Aspen is seeking $70,850 from Marilyn Marks to recoup attorneys’ fees and other expenses related to her lawsuit seeking digital copies of ballots from last May’s election.
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.”
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.”
curtis [at] aspendailynews [dot]com
1 comment:
This post is referenced from the AT link http://www.aspentimes.com/apps/pbcs.dll/article?AID=/20100325/NEWS/100329896/1077&ParentProfile=1058
Cont’d to WDB
While this is not a completely current list, this will help explain the problem. This is a 2008 inventory of voting equipment
http://www.elections.colorado.gov/Content/Documents/Voting%20Systems/2008%20General%20Election%20Inventory.pdf
A more current list would show a bigger problem.
Many of the most current Hart systems (and some others on the list) capture scanned images on a hard drive. Even if the hard drive could be removed from the machine and locked in a ballot box, that would be inconsistent with SOS regulations that require that all the data be exportable on demand. Those scans are similar to the tiff files I seek from TBI. Also, many cities borrow their machines from the counties to save cost. Obviously the cities cannot remove the counties’ hard drive and lock it away. Nor could they destroy the images on the hard drive as the court’s order implies.
While you may claim that my litigation is frivolous and without any merit, you might ask some of the clerks who have upcoming elections using this borrowed modern equipment. They are a little puzzled as to what to do right now.
These are significant public policy issues about election records, and will ultimately get the attention of election officials, candidates and the parties across the state.
You could make a contribution to that discussion rather than just focusing on personal attacks against those of us who are trying to bring more transparency to electronic elements of the voting systems.
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