Colorado’s open meetings law must be clarified following lawsuit from Epps and Marshall

Colorado state Representatives Elisabeth Epps (D-Denver) and Bob Marshall (D-Highlands Ranch) filed a lawsuit against House leadership and the House itself alleging both legislative caucuses were meeting in violation of the Colorado open meeting law.

Taken at face value, the allegations are devastating. Among other things, Epps and Marshall allege the caucus meetings violated the law because they were held without any public notice; deliberately concealed those meetings from the public; and members conducted legislative business using encrypted group texts.

Conflicts between rank-and-file members and legislative leadership are not unusual. However, it is highly unusual for members to sue the leadership over those conflicts, especially over meetings that have existed in some form for generations of Colorado legislators. As a former speaker of the House, I’m no stranger to internal conflicts and I also understand the importance of caucus meetings to the General Assembly. In fact, one of the many leadership challenges I constantly confronted was how to conduct caucus meetings in a manner consistent with the Colorado Open Meetings Law.

I was not the first speaker and I will certainly not be the last speaker to deal with this conundrum of how to create spaces where legislators can have candid discussions outside the public eye while maintaining transparency and access to the public. The ability to have these candid discussions is essential to the legislative process because too often floor debate and committee hearings turn into performative art. Quite honestly there is something about the bright lights of the capitol that can transform a normally reasonable person into a demagogue of the first order.

In 1972, the Colorado open meeting law was adopted as an initiated statute. The statute affirmatively declares “the formation of public policy is public business and may not be conducted in secret.” Colorado’s law was adopted during a period of great political upheaval in both Colorado and throughout the nation. The average citizen felt disconnected from the mechanisms of government and calls for reform were rampant. The law’s original inclusion in a group of reforms known as the “Colorado Sunshine Act of 1972” unambiguously points to its intent, which was and is to move the functions of government out of the shadows. I wholeheartedly agree with this sentiment.

However, with any legislation or statute, there are unintended consequences and unanswered questions. The primary unanswered question has always been how much access should the public have to legislative caucus meetings, which are nominally not an official policy-making body.

The Colorado Supreme Court has specifically addressed this difficult question on one occasion. In 1973, former state Senator Ralph Cole asked the court to clarify the reach of Colorado’s, then-new law and to declare that it does not apply to legislative caucus meetings. Cole argued Article V of the Colorado Constitution permitted the General Assembly to hold secret meetings when necessary. In 1983, the Colorado Supreme Court rejected Cole’s argument by ruling that caucus meetings are “a ‘de-facto’ policy-making body which formulates legislative policy that is of governing importance to the citizens of this state.”