Colorado Court of Appeals revives citizen’s secret ballots lawsuit against Arvada

By Jeffrey A. Roberts
CFOIC Executive Director

An Arvada resident who sued his city for using secret ballots to fill a council vacancy can indeed show that he was injured by the closed-door process, the Colorado Court of Appeals ruled Thursday in overturning a district judge’s decision to dismiss the case.

Russell Weisfield had alleged that Arvada council members ignored Colorado’s Open Meetings Law (aka the Sunshine Law) when they voted four times by secret ballot in January 2014 to eliminate candidates for a vacant council seat.

His suit was tossed, not on the merits of his argument, but because the judge said Weisfield lacked legal standing. Jefferson County District Court Judge Margie Enquist ruled that Weisfield couldn’t show he had been personally harmed by the council’s secret votes because he wasn’t among the finalists for the vacancy and never claimed that the appointee, Jerry Marks, failed to “adequately represent his interests” as a resident of Arvada’s council District 1.

The Court of Appeals broadly rejected Enquist’s decision and sent the case back to district court.

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Russell Weisfield

“We conclude that Weisfield has a legally protected interest in having his city council fill the District 1 vacancy in a manner that complies with the Open Meetings Law,” the appellate court’s decision says. Weisfield, it adds, is not required to show that he was a candidate for the vacant seat or that Marks “somehow acted against his personal interests. Weisfield’s allegation that he was deprived of access to information about how the council members voted is sufficient to demonstrate an injury in fact.”

The Sunshine Law “articulates an interest in having public business conducted openly and provides a mechanism for private citizens to protect that interest,” the Court of Appeals said. “We, therefore, conclude that the statute creates a legally protected interest on behalf of Colorado citizens in having public bodies conduct public business openly in conformity with its provisions.”

“I’m glad that the court concluded what I always believed was true – namely that I have the right to know how my city council voted,” said Weisfield, who is represented by Denver attorney Elliot Fladen. “Sadly,” he added, “the case continues and is not yet resolved.”

Maria VanderKolk, communications manager for Arvada, said the city attorney’s office is reviewing the decision and will be discussing it with the city council at a later date.

With the lawsuit back in district court, the judge may consider a motion from Arvada to dismiss the case on others grounds. Arvada argues that, as a home rule city, the Colorado Constitution allows it to set its own procedural rules for matters involving municipal elections. The city also contends that the Open Meetings Law does not dictate how a home-rule municipality must conduct the process for filling a council vacancy.

“Therefore, while the meetings themselves must comport with the Colorado Open Meetings Law, the statute is not applicable to city council vacancies,” Arvada’s motion says.

The secret ballots provision of the Sunshine Law was enacted in 2012. It generally prohibits the state or any local public body from voting in secret to adopt “any proposed policy, position, resolution, rule, or regulation” or to take “formal action.”

The state legislature enacted the prohibition against secret ballots following a Court of Appeals ruling that the Fort Morgan City Council did not violate the Sunshine Law when it used anonymous written ballots to appoint two council members and a municipal judge in 2009 and 2010.

Last year, reacting to the dismissal of Weisfield’s case in district court, the legislature approved HB 14-1390 without a single “no” vote. The measure, signed by Gov. John Hickenlooper last June, ensures that anyone has legal standing to challenge violations of the Sunshine Law.

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