Did you see the really important Supreme Court judgment handed down on June 28, 2012? No, not the U.S. Supreme Court’s 5-4 ho hum affirmation of the Affordable Care Act. I’m talking about the Colorado Supreme Court’s decision to not hear the city of Aspen appeal of the Marks v. Koch ballots-as-public-records case. If you missed it, after three years, Marilyn wins. By deciding to not hear the city’s appeal, the Colorado Supreme Court confirmed that ballots are public records. Colorado’s citizens can rightfully and independently verify their election results, and clerks, both elected and appointed, need to both keep ballots anonymous and allow for their public inspection. What a concept. Something strange happens to a lot of people once they are elected. All of the sudden their unyielding belief in fairness and equality takes a back seat to anything that might deleteriously impact their political station. So it should surprise no one that a failed candidate took a small but insidious issue to the higher ground of statewide public interest.
Of course Marilyn paid for her leadership on the issue of ballots as public records. After her March 2010 district court loss in her effort to gain access to the 2009 city of Aspen instant runoff election (IRV) ballots, the city clubbed her with a $67,047 claim for legal fees, representing a mere 174 hours of work, characterizing her case as “frivolous, vexatious and groundless.” Then, only weeks after the district court’s dismissal, flush with the validating afterglow of victory, Marilyn antagonist and IRV architect Jack Johnson coined, in a recorded public meeting comment, what I am sure he and others in power hoped would become Aspen’s new election-day mantra, “Let us vote and then let us shut up.” The message was clear to anyone who might want to challenge the city: Mark your ballot and be on your way. We’ve got it from here.
Undaunted, Marilyn took her case to the Colorado Court of Appeals. Last September, in the judicial equivalent of a LeBron James alley-oop slam dunk, the three-justice panel “posterized” the district court decision, ruling unanimously that ballots constitute public records. In the wake of this judicial about face, Aspen’s City Council experienced its own miraculous change of heart. Marilyn’s previously “groundless” and “vexatious” case was suddenly critically important, meriting appeal to the highest court of the highest state in the land. So last November, without so much as a public discussion let alone a vote, Aspen’s “Fab Five” (I’m on a roll with the basketball references) decided in executive session, a legal no-no in and of itself, to appeal to the Colorado Supreme Court. After initially deciding to hear the case the Colorado supremes reversed themselves last week. In doing so they slammed the door on the city. The appellate court decision stands as statewide precedent.
Full Article: Sometimes it’s what a court doesn’t do that matters.