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Two Colorado House Democrats sue their caucus, Republicans alleging open meetings violations

Legal action is a rare intraparty spat spilling into public view and the courts
The Colorado State Capitol is seen on Aug. 19, 2021, in Denver. (Olivia Sun, The Colorado Sun file)

Two Democratic state representatives are suing their own caucus, including House Speaker Julie McCluskie and House Majority Leader Monica Duran, alleging “pervasive” violations of Colorado’s open meetings laws.

The 13-page legal action, a rare intraparty spat spilling into public view and the courts, was filed in Denver District Court on Friday by Democratic Reps. Elisabeth Epps of Denver and Bob Marshall of Highlands Ranch.

It alleges Colorado House Democrats’ near-weekly caucus meetings, during which pending legislation is discussed, should be publicly noticed and that meeting minutes be recorded and offered to the public. The lawsuit alleges members of the House Democratic caucus “directed legislative aides to omit or disguise these mandatory meetings from representatives’ calendars.”

The lawsuit also argues that House Democrats’ use of Signal, an encrypted smartphone messaging system in which messages can be automatically deleted, also violates the state’s open meeting and public records laws. According to the legal action, representatives used Signal to discuss witness testimony and how each lawmaker would vote on bills.

Epps and Marshall, both lawyers, say they brought their concerns about the potential open meetings and public records violations to McCluskie, D-Dillon, and the Legislature’s nonpartisan Office of Legislative Legal Services.

“Despite plaintiffs’ best efforts, ultimately House leadership failed to act and defendants continued to violate COML,” the lawsuit said.

McCluskie and Duran, D-Wheat Ridge, responded in a written statement Monday.

“House Democratic leadership is committed to open and transparent government and ensuring a fair and public process for policymaking,” the statement said. “We are still reviewing the complaint in full, and we stand by our caucus – dedicated public servants who work tirelessly on behalf of their constituents.”

In an interview with The Colorado Sun, Marshall said he doesn’t blame Legislature leadership but rather the entire institution, where he alleges these issues have been taking place for decades.

“They inherited this swamp,” he said.

Marshall added that he and Epps stopped short of filing a motion for a preliminary injunction to avoid a court hearing. Instead, he hopes the defendants will simply address the allegations and begin making changes. At present, the open meetings laws are too difficult to follow while still getting work done, he said.

Epps didn’t immediately return a voicemail and text message seeking comment.

State Rep. Elisabeth Epps, D-Denver, and Rep. Bob Marshall, D-Highlands Ranch. (Handouts)

“Quorums of state public bodies in the House of Representatives routinely meet in secret to discuss public business,” the lawsuit said. “These discussions inform the course of legislative action to be later taken publicly and are routinely conducted outside of public view, without providing public notice, and without recording or publishing meeting minutes that the public can access.”

Epps and Marshall are also suing House Minority Leader Mike Lynch, the top Republican in the House, and the entire House GOP caucus, alleging they, too, violate open meetings laws by holding regular caucus meetings and through their communications on Signal.

Roger Hudson, deputy chief of staff for the House GOP, said the lawsuit represents “what Coloradans hate about politics at the Capitol.”

“The infighting and expense is only a distraction to the priorities that they care about – improved schools, safer communities, more jobs at higher wages and better roads throughout our state,” Hudson said in a statement. “Republicans continue to believe that the people of Colorado deserve access to their government through comprehensive open meetings and open records laws – we welcome any conversation that will update our statutes to keep up with rapidly evolving technology.”

The entire Colorado House of Representatives is also named as a defendant in the lawsuit. Democrats have a 46-19 supermajority in the chamber.

The lawsuit asks a judge to declare that the unannounced caucus meetings constitute a violation of Colorado’s open meetings law and to enter an order barring them from holding private meetings between two or more House members to discuss public business. When such meetings occur, there should be minutes made available to the public, the legal action requests.

Epps and Marshall are also asking that their attorneys fees be paid by the defendants in the case.

The lawsuit argues Colorado’s open meetings laws required that any gathering of two or more members of an elected state body must make their gatherings public if they are discussing public business. It also says any meeting of a state public body at which a quorum is expected to be in attendance can happen only after the public is given full and timely notice.

Finally, the laws say the minutes of any meeting of a state public body shall be recorded and made available to the public.

Democrats and Republicans in the House and Senate regularly hold closed-door caucus meetings that the public isn’t informed of beforehand. That’s been a yearslong practice at the Capitol.

Lawmakers’ use of Signal, which was first released in 2014, has become more widespread over the past two or three years.

Marshall and Epps just finished their first year at the Capitol after being elected in November 2022. Epps repeatedly clashed with House Democratic leadership during the 2023 legislative session, specifically McCluskie, with the tensions flaring on the final day of the lawmaking term during a House Democratic caucus meeting.

In an impassioned speech to the rest of her caucus, Epps directly criticized McCluskie’s leadership, saying she had been too lenient with Republicans and had allowed last-minute bills to be forced through by Democrats.

“You asked to do this,” Epps said. “I’m asking you to do much, much more.”

Rep. Julie McCluskie speaks on June 11, 2021, before Gov. Jared Polis signs SB 268, aimed to increase statewide funds per student at the Boettcher Mansion in Denver. (Olivia Sun/The Colorado Sun)

Marshall has a history of bringing open meetings lawsuits. He sued the Douglas County School Board in 2022 over the firing of its superintendent when a conservative majority took over the board, arguing there had been illegal secret meetings over the decision.

A judge agreed that the four new board members held “daisy chain,” or one-on-one meetings, in advance of the firing in violation of public meetings laws.

“It was hard for me to be down there and not say anything when I was hammering the Douglas County School Board before,” Marshall told The Colorado Sun.

Steve Zansberg, a well-known Colorado media attorney, filed the lawsuit on behalf of Epps and Marshall. He also represented Marshall in the Douglas County lawsuit.

Zansberg also represents The Sun and the Colorado Freedom of Information Coalition.

Taxpayers may be on the hook for defending the Colorado House, its caucuses and its leadership against the lawsuit. The Legislature’s Committee on Legal Services will decide whether or not the Legislature’s lawyers or outside counsel should be retained at taxpayers’ expense in the case.

In April, Marshall asked the Legislative Council, a committee of legislative leaders, to create an interim committee on Colorado’s open meetings laws and how they apply to the Legislature, including emails and electronic communications.

“This request comes out of concern that the Legislature’s become very sloppy with the Open Meeting Law and Colorado Open Records Act,” Marshall told the committee. “We work for the people and if the people want to see what we’re doing, they put a referendum in place to know what’s going on.”

The council never voted on Marshall’s proposal, effectively rejecting it.

Senate President Steve Fenberg, D-Boulder, told Marshall that the issue should be addressed in a bill in the future.

“I think the open records laws and open meetings laws are very confusing,” Fenberg said. “And, oftentimes, I think folks don’t know how to actually comply, especially in the modern day. So I do think this is an area that the Legislature needs to discuss.”

Then, on the final day of the Legislature’s 2023 session, Marshall said he intended to take action on what he called “hypocritical” violations of sunshine laws by his fellow lawmakers.

“It was 10 times worse than anything the Douglas County School Board had been doing,” he said.

He said the lawmakers had a “holier than thou” mentality, criticizing other branches of government for a lack of transparency while not looking at themselves.

“That’s a hypocrisy that’s very difficult for me to bear,” he said.

No hearings on the lawsuit brought by Epps and Marshall had been scheduled as of Monday morning.

The Colorado Sun is a reader-supported, nonpartisan news organization dedicated to covering Colorado issues. To learn more, go to coloradosun.com.