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Weisfield v. City of Arvada

Court of Appeals of Colorado, Fourth Division

April 9, 2015

Russell Weisfield, Plaintiff-Appellant,
v.
The City of Arvada, a municipal corporation and political subdivision of the State of Colorado; Marc Williams, in his official capacity as Mayor of the City of Arvada; Bob Dyer, in his official capacity as council member for the City of Arvada; Bob Fifer, in his official capacity as council member for the City of Arvada; Don Allard, in his official capacity as council member for the City of Arvada; John Marriot, in his official capacity as council member for the City of Arvada; Mark McGoff, in his official capacity as council member and Mayor Pro Tem for the City of Arvada; and Jerry Marks, Defendants-Appellees

Editorial Note:

This Opinion is subject to revision upon final publication.

Jefferson County District Court No. 14CV30183. Honorable Margie L. Enquist, Judge.

Schlueter, Mahoney & Ross, P.C., Elliot D. Fladen, Denver, Colorado, for Plaintiff-Appellant.

Christopher K. Daly, City Attorney, Roberto Ramirez, Senior Assistant City Attorney, Arvada, Colorado, for Defendants-Appellees.

OPINION

LOEB, CHIEF JUDGE

Page 1070

[¶1] Plaintiff, Russell Weisfield, appeals the district court order granting the motion to dismiss for lack of standing filed by defendants, the City of Arvada; Marc Williams, Bob Dyer, Bob Fifer, Don Allard, John Marriot, Mark McGoff, in their official capacities; and Jerry Marks. We reverse and remand with directions.

I. Background

[¶2] This case concerns the use of secret ballots by Arvada's mayor and city council members to fill a vacancy on the city council for Arvada District 1. Weisfield is a resident of that district. Williams, the mayor of Arvada, and council members Dyer, Fifer, Allard, Marriot, and McGoff participated in the vote. Marks was selected to fill the vacancy and is now the council member representing District 1.

[¶3] The underlying facts of this case are not in dispute. After giving proper notice to the public, the Arvada City Council held a special meeting on January 10, 2014, to select among five candidates to fill the District 1 vacancy. The meeting was recorded and televised. The city council conducted four rounds of secret ballot voting in which candidates who did not receive a sufficient number of votes were eliminated. The council members reported the total number of votes each candidate received after each round, but did not report who voted for which candidates. At the end of the four rounds of secret ballot voting, Marks was the only remaining candidate. The council members then held an open vote in which they unanimously elected Marks to fill the vacancy.

[¶4] Weisfield filed this action in district court, alleging that the city council's use of secret ballots to fill the vacancy violated Colorado's Open Meetings Law. Defendants moved to dismiss pursuant to C.R.C.P. 12(b)(1) and C.R.C.P. 12(b)(5). After briefing, the district court granted the motion to dismiss in a written order. The court ruled that Weisfield failed to allege an injury in fact to a legally protected interest, and, therefore, did not have standing. Because the court granted the motion to dismiss under

Page 1071

C.R.C.P. 12(b)(1) based on lack of standing, the court did not address defendants' other asserted grounds for ...


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