Colorado Court of Appeals Opinions
September 29, 2011

No. 10CA1111. Marks v. Koch,Clerk of the City of Aspen.
Colorado Open Records Act—Ballot—Identity—Colo. Const. Art. VII, § 8—Colorado Municipal Election Code.

In this proceeding under the Colorado Open Records Act (CORA), plaintiff Marilyn Marks appealed the district court’s judgment dismissing her case for failure to state a claim on which relief can be granted pursuant to the motion filed by defendant Kathryn Koch, the City Clerk of Aspen. The judgment was reversed and the case was remanded for further proceedings.

The public records Marks sought to have released under CORA were 2,544 digital copies (TIFF files) of ballots cast in the May 2009 Aspen mayoral municipal election, in which Marks was a losing candidate. Marks contended that the right to inspect the TIFF files was not contrary to the secrecy in voting requirement of article VII, § 8 of the Colorado Constitution. The Court of Appeals agreed. The secrecy in voting requirement seeks to protect the identity of a voter and not the content of his or her ballot (assuming the voter’s identity could not be discerned from the content of the ballot); therefore, it does not bar the latter from release under CORA.

Marks also contended that, because the TIFF files are not ballots, releasing them would not be contrary to the Colorado Municipal Election Code’s ballot storage and destruction provision. The Court agreed. The district court was ordered on remand to release the TIFF files to Marks for inspection pursuant to CORA, with the exception of those TIFF files that contain either a write-in candidate or ballot markings that could identify an individual voter.

No. 10CA1158. In re the Marriage of Poland.
Dissolution of Marriage—Military—Retirement Benefits—Temporary Disability Retired List.

In this post-dissolution of marriage action, husband appealed from the order awarding wife a portion of the pay he received from the military after he was placed on the temporary disability retired list (TDRL). The order was vacated and the case was remanded for further proceedings.

The parties’ marriage was dissolved in 2005. Their separation agreement, which was incorporated into the decree, provided that husband’s military retirement benefits were marital property and would be divided, on his retirement, under the Hunt–Gallo formula. [In re Marriage of Hunt, 909 P.2d 525 (Colo. 1995).] The agreement further provided that the parties intended to divide husband’s “gross military retirement” and that if husband elected to receive Veterans Administration (VA) disability benefits and his disposable retirement pay was thereby reduced, wife’s share of the benefits would not be reduced. When husband was placed on the TDRL in September 2009, the trial court ordered husband to pay wife her share of his TDRL earnings as determined under the decree.

Husband contended that the trial court erred by awarding wife a portion of his TDRL pay. A military service member is placed on the TDRL if the member has a disability rating of at least 30% but the disability has not yet been determined to be permanent. The Uniformed Services Former Spouses’ Protection Act precluded the trial court from dividing anything other than “disposable retired pay,” as defined in the statute. However, based on 10 U.S.C. § 1408(a)(4)(C) of the Act, an amount equal to the amount of TDRL pay, as calculated based on husband’s percentage of disability when he was placed on the TDRL, must be excluded from the marital property; any amounts in excess of that amount may be divided under the decree. Because the trial court divided all of husband’s TDRL pay under the time-rule formula without considering the extent to which the pay was computed on husband’s disability, the order was reversed. On remand, the trial court must determine and exclude husband’s TDRL pay before dividing husband’s retirement benefits pursuant to the decree.

Colorado Court of Appeals Opinions

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