Two Democratic lawmakers sue Colorado House, leadership over transparency complaints

Two Democratic lawmakers have filed a lawsuit against the Colorado House of Representatives and its leaders, alleging a “series of long-standing practices” that violated the state’s open-meetings laws.

Reps. Elisabeth Epps and Bob Marshall, both of whom just finished their first terms in the House, filed the lawsuit and wrote that they became aware of alleged “pervasive violations” of the state open-meetings law by lawmakers from both parties shortly after they began working as legislators in January. They allege that House Democrats — who make up a supermajority of the chamber — use encrypted messaging services to communicate privately during public committee meetings, and that the Democratic lawmakers gather in un-announced, weekly meetings during the session to discuss legislation.

Epps and Marshall also accuse their leadership of directing legislative aides “to omit or disguise these mandatory meetings from Representatives’ calendars.”

The suit was filed against the top Democrats in the House, Speaker Julie McCluskie and Majority Leader Monica Duran. But it levels similar accusations at Republicans, and it names Minority Leader Mike Lynch, the top GOP lawmaker in the House, as a defendant. The suit also lists the Democratic and Republican caucuses, and the House itself, as defendants.

“Quorums of state public bodies in the House of Representatives routinely meet in secret to discuss public business,” the lawsuit alleges. “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.”

In separate interviews Monday, Epps and Marshall told the Denver Post that they had attempted unsuccessfully to address the issue privately with House leadership. The lawsuit asks a Denver court to declare the practices’ illegal and to issue an injunction barring legislators from making any further use of those practices.

“I really think the big thing is this is meant to be a loving intervention with an alcoholic that just doesn’t want to change,” said Marshall, an attorney who recently won a separate open-meetings lawsuit against the Douglas County school board. “They can’t do it. We tried, independently, and again — there is no moral fault here because leadership inherited this huge swamp. And it’s just too ingrained and feted for them to change on their own, (that) is my belief. And our colleagues show up and they’re told this is how it’s always been.”

In a joint statement from a spokesman Monday morning, McCluskie and Duran said they were still reviewing the lawsuit and stood by their caucus.

“House Democratic leadership is committed to open and transparent government and ensuring a fair and public process for policymaking,” they wrote.

A spokesman for Lynch was not immediately available for comment.

Epps said the house leadership’s violations included the use of Signal, an encrypted messaging app, by legislators during committee meetings, and the meeting of Democratic committee members before those committee meetings actually happened. According to the suit, the use of Signal during committee meetings “included consideration of witness testimony and discussion of members’ expected votes.” Those conversations, the suit alleges, constituted “meetings within meetings” outside of the public view.

Epps said that the open-meeting violations contributed to bills “dying in darkness,” and she said the alleged violations proved the fears of people who’d drafted the open-meetings law to begin with: that public business would be conducted in private.

“The logic is it’s not just that the decision is public, but the formation of public policy is a matter of public interest,” she said.