Judge forbids CORA requests, threatens gag orders in Marks suit

DENVER — A federal court district judge hearing a case concerning voting procedures filed by Marilyn Marks’ Aspen Citizen Center, barred the group from filing certain open records requests last month and now has threatened to issue a gag order.

The Citizen Center sued several Colorado clerk and recorders, also the Secretary of State’s Office in federal court this February for going through with a plan to use specific ballot styles and procedures that could be traced back to voters, including bar codes. They asked the court to issue a court order against the defendants to ensure ballot secrecy.

Clerks in Jefferson, Chaffee, Mesa, Boulder, Eagle and Larimer counties are named in the suit. They have requested that Watanabe dismiss the case.

At the defendants’ request, Watanabe issued the following order against Marks’ group and its individual members, some of them Saguache County residents:

“Defendants propose that this Court order Plaintiff Citizen Center and its individual members to refrain during discovery in this case from submitting Colorado Open Records Act (“CORA”) requests to each of the defendants for inspection and copying of public records that are otherwise obtainable using discovery in order to prevent plaintiff from using CORA as a means to exceed the discovery limits included in this order. Plaintiff objects to this Court’s entry of any such order as burdensome to and violative of Citizen Center’s and its members’ First Amendment constitutional rights to freedom of speech and association and to petition the government.”

“This means that both Citizen Center and its members have been, at the request of the Secretary of State and defendant clerks, divested by the Court of their statutory rights under Colorado law to inspect public records,” one Citizen Center spokesperson commented. “We can’t even ask for public records of any defendant custodians.”

Several members submitted petitions to the court along with Marks’ attorney’s emergency motion to reconsider, objecting to the order and explaining how it would restrict their right to function in various capacities Watanabe will rule on the motion July 13.

Last week, according to a report in the Salida Mountain Mail, Watanabe threatened to place a gag order on publications that try the case in the press. He specifically mentioned an article that appeared in the Colorado Statesman as well as a podcast.

According to open records law, reporters can object beforehand to any gag order a judge may be preparing to issue on the grounds that their readers have an interest in knowing about the case and the outcome of the court proceedings. The First Amendment provides the parties in the case to speak freely and allows the reporter some right to gather news. According to the Reporter’s Committee: “When First Amendment rights are compared to the interest in a fair, impartial, and efficient trial, the First Amendment rights should prevail because there is no proof that trial participants' speech would harm the fairness, impartiality or efficiency of the trial.”