June 27, 2019

Colorado Court of Appeals: Open Meetings Law Prohibits Use of Secret Ballots

The Colorado Court of Appeals issued its opinion in Weisfield v. City of Arvada on Thursday, April 9, 2015.

Lack of Standing—Secret Ballots and Open Meetings Law.

This case concerned the use of secret ballots by Arvada’s mayor and city council members to fill a vacancy on the council for Arvada District 1. Plaintiff is a resident of that district. Defendants Mayor Williams and council members Dyer, Fifer, Allard, Marriot, and McGoff participated in the vote, and defendant Marks was selected to fill the vacancy.

After proper notice, a special meeting was held by city council on January 10, 2014 to select among five candidates for the vacancy. The meeting was recorded and televised. The council conducted four rounds of secret ballot voting in which candidates were eliminated if they didn’t receive a sufficient number of votes. Total votes were reported after each round, but it was not reported who voted for which candidates. At the end of the process, Marks was the only remaining candidate. The council then held an open vote in which they unanimously elected Marks.

Plaintiff sued, alleging that the use of secret ballots violated Colorado’s Open Meetings Law. Defendants moved to dismiss. The trial court granted the motion, holding that plaintiff lacked standing because he failed to allege an injury in fact to a legally protected interest.

The Court of Appeals reversed. The Open Meetings Law explicitly prohibits the use of secret ballots and provides that “any citizen of this state” may enforce the Open Meetings Law in Colorado courts. Plaintiff had a legally protected interest in having the city council fill its vacancy in an open manner in compliance with the Open Meetings Law. He also sufficiently alleged an injury in fact to this legally protected interest. He is a citizen of Colorado and a resident of Arvada District 1. As a direct result of the alleged violation, plaintiff did not know how each council member voted during the process of selecting the new council member who now represents him. The case was remanded for further proceedings, including the district court’s consideration of the alleged grounds for dismissal asserted in defendants’ motion to dismiss under CRCP 12(b)(5).

Summary and full case available here, courtesy of The Colorado Lawyer.

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