Colorado Supreme Court won’t hear Arvada’s appeal of secret ballots ruling

The Colorado Supreme Court on Monday let stand an appellate court ruling that reinstated a citizen’s lawsuit against Arvada for violating the Colorado Sunshine Law.

Russell Weisfield sued Arvada in 2014 after the city council used secret ballots four times to eliminate candidates for a vacant council seat. The council, he alleged, ignored a 2012 amendment to the state’s Open Meetings Law (aka the Sunshine Law) that generally prohibits public bodies from voting in secret to adopt policies or take “formal action.”

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Russell Weisfield

A Jefferson County District Court judge dismissed Weisfield’s lawsuit, saying he lacked legal standing to sue. But the Colorado Court of Appeals revived it last April, broadly rejecting Judge Margie Enquist’s ruling that Weisfield needed to show he was personally harmed by the council’s appointment of Jerry Marks in District 1.

With the standing issue settled by the Supreme Court’s denial of Arvada’s petition for writ of certiorari, the case likely will end up back in district court.

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

The case will closely watched by local governments in Colorado, some of which have continued to use secret ballots to fill vacancies in spite of the ban enacted by the legislature in 2012. Westminster, Broomfield, Thornton, Montrose, Fort Lupton, Florence and Woodland Park all replaced council members recently using procedures that hid how each council member voted.

Weisfield, who is represented by attorney Elliot Fladen, said Monday he’s pleased by the Supreme Court’s decision and “I’m hopeful that the remaining parts can also be favorably resolved.” A spokesperson for Arvada could not be reached for comment.

Marks lost his council seat in the Nov. 3 election.

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