Joyce Reno, in her official capacity as Chaffee County Clerk and Recorder, Petitioner-Appellee,
Marilyn Marks, Respondent-Appellant
Chaffee County District Court No. 11CV132. Honorable Charles M. Barton, Judge.
Jennifer Davis, County Attorney, Salida, Colorado, for Petitioner-Appellee.
McGuire Baines LLC, Robert A. McGuire, Jeffrey D. Baines, Denver, Colorado, for Respondent-Appellant.
Bernard, J., concurs.
Dunn, J., dissents.
[¶1] Under the Colorado Open Records Act (CORA), section 24-72-201 et. seq, C.R.S. 2013, does a trial court have discretion to deny a person who requests inspection of a public record attorney fees, where the custodian commenced a section 24-72-204(6)(a) action against the requestor seeking an order restricting inspection, turned over one of the records that the requestor had sought to inspect, and did not obtain such an order? This is a question of first impression, which we answer " no." Therefore, we reverse the order denying respondent-appellant Marilyn Marks' motion for attorney fees, and remand the case for entry of an attorney fees award against petitioner-appellee, Joyce Reno, in an amount to be determined by the trial court.
[¶2] According to the parties' briefs, the following facts are undisputed. During the 2011 general election, Marks emailed Reno, the Chaffee County Clerk and Recorder, requesting to " review some voted ballots from
the 2010 general election." The next day, Marks sent a second email notifying Reno that if Marks' request was not granted within the three-day statutory deadline, Marks would file an action in the district court to compel production of the documents.
[¶3] On Reno's behalf, the county attorney notified Marks that as framed, Marks' request could not be granted because it was unduly broad. The county attorney also advised that the Chaffee County Public Records General Policy allows Reno to delay processing voluminous requests made within twenty days of an upcoming election.
[¶4] Without revoking her initial request, Marks emailed a second request to Reno, seeking to " inspect and copy the first anonymous/untraceable ballot in the mail-in ballot group . . . in the first box of mail ballots stored in the November 2010 election." Again, the county attorney responded, this time explaining to Marks that her request would require the presence and involvement of three staff members and two election judges, and that an observer from each political party must be given the opportunity to participate. The county attorney concluded that " such a process is unduly burdensome to [Reno's] office during election time." The county attorney further notified Marks that, given the " timing of the request and the uncertainty of whether the disclosure of the requested records is permitted," Reno had filed a petition in district court seeking judicial guidance on Marks' request. Finally, the county attorney emphasized that " the County [was] not denying [Marks] the right to inspect the requested record. Rather, [Reno] [was] unable to determine if disclosure is prohibited."
[¶5] Reno filed a CORA action in district court, requesting that the court prevent the disclosure of voted ballots because she " believe[d], in good faith, that Colorado law prohibits" the disclosure of voted ballots, and that such disclosure would substantially injure the public interest by chilling a citizen's right to vote. The petition addressed both Marks' first broad CORA request and her second CORA request seeking to view a single ballot. Although the petition named Marks as the respondent, she did not file an answer.
[¶6] Before the hearing on Reno's petition, the parties stipulated to stay the proceedings pending the outcome of proposed legislation, House Bill 12-1036, which pertained to the disclosure of voted ballots. According to the stipulated motion, " if passed, [the proposed legislation] would provide guidance with respect to the issues involved in this matter and Marks' request. [I]t would be premature to address the issue if there is a possibility that it would be resolved through legislative action."
[¶7] After House Bill 12-1036 passed, Reno agreed to produce a single anonymous voted ballot according to guidelines contained in the statute. See § 24-72-205.5, C.R.S. 2013. The parties then told the court that only Marks' request for attorney fees remained at issue.
[¶8] Following an evidentiary hearing, the district court declined to award Marks any attorney fees. As relevant here, it concluded that Marks was not entitled to fees under section 24-72-204(5), C.R.S. 2013, because she was not a " prevailing applicant." Marks appeals this ruling.
II. Standard of Review
[¶9] As with any statute, a lower court interpretation of CORA is subject to de novo review. Colo. Republican Party v. Benefield, 337 P.3d 1199, 1204, 2011 WL 5436483 (Colo.App. No. 10CA2327, Nov. 10, 2011) ( cert. granted 2012 WL 4478961, Sept. 24, 2012). Here, that review is informed by the following principles:
o The goal of statutory interpretation is to ascertain the General Assembly's intent. People v. Nance, 221 P.3d 428, 430 (Colo.App. 2009).
o If legislative intent is clear from the plain language of the statute, other rules of statutory interpretation need not be applied. Id.
o The words of statutes are to be given their plain and ordinary meaning. Town of Telluride v. Lot Thirty-Four Venture, L.L.C., 3 P.3d 30, 35 (Colo. 2000).
o The statutory provisions should be construed as a whole, giving ...