Your right to know has suffered a blow
A Jefferson County district judge has made a mockery of a law that bans secret balloting by local governing bodies.
We join newspapers across the state in expressing outrage over the judge’s ruling because of the chilling effect it has on the public’s right to know.
The Legislature went out of its way to enact a prohibition against secret ballots after the Colorado Court of Appeals ruled that the Fort Morgan City Council did not violate Colorado’s Sunshine Law when it used anonymous written ballots to appoint two council members and a municipal judge in 2009 and 2010.
The two-year-old law, HB12-1169, says local governing bodies cannot adopt “any proposed policy, position, resolution, rule or regulation or take formal action” by secret ballot.
This tightening of Colorado’s Open Meetings Law should have sent a clear message to elected officials not to try such shenanigans in the future. So, it came as a shock that a judge refused to invalidate the outcome of an Arvada City Council voting process that made use of secret ballots.
The council’s final vote was made in a public manner, but only after four secret ballots to eliminate candidates for an open council seat. Arvada resident Russell Weisfield filed suit after the council’s Jan. 10 vote to elect Jerry Marks.
But Jefferson County District Judge Margie Enquist ruled that Weisfield had no standing to sue because he wasn’t an injured party. Rather than ruling on whether the council broke the law, the judge attached conditions to Weisfield’s right to know.
Enquist wrote that Weisfield had not “sufficiently alleged an injury-in-fact,” because he was not one of the finalists eliminated by the council’s voting procedure and he didn’t contend that he had an individual interest in the outcome.
Ludicrous. Weisfield and every other citizen represented by the Arvada City Council were injured when the council violated the law protecting the public from secret voting. The law specifically says that “any citizen of the state” has the right to go to court in response to violations. The very point of Colorado’s Sunshine Law is that the public’s business may not be conducted in secret. Transparency in government should be for all citizens, not just those who can prove they’ve been individually harmed.
Rather than enforcing a clearly defined provision of law, the judge went far afield in providing a way around it.
“If left uncorrected on appeal, the judge’s ruling would essentially render the Open Meetings Law a dead letter, unenforceable by anyone who did not suffer a direct injury as a result of a violation of the statute,” said attorney Steven Zansberg, president of the Colorado Freedom of Information Coalition. “That is plainly not the intent of, nor the statutory text codified by, the General Assembly.”
Weisfield’s lawyer has indicated that an appeal is imminent. We’re confident that an appellate review will correct this aberration. Nevertheless, Rep. Bob Gardner, R-Colorado Springs, wants to introduce a bill this session to clarify that all members of the public have standing to contest violations of the ban on secret ballots — not just injured parties.