Colorado House settles Democratic legislators’ open-meeting lawsuit

The Colorado House of Representatives has moved to settle an open-meetings lawsuit filed by two of its members, agreeing to provide more transparency into legislative strategy meetings and private messages between legislators.

The settlement, filed in court Thursday, awaits the approval of the Denver judge overseeing the litigation. But its terms have been agreed upon by the two Democratic lawmakers who filed the suit — Reps. Elisabeth Epps and Bob Marshall — and the institutions they sued: the House, their own House Democratic caucus, its Republican counterpart and the chamber’s three leaders.

Under the terms of the deal, the House’s leaders — Speaker Julie McCluskie, Democratic Majority Leader Monica Duran and Republican Minority Leader Mike Lynch — agreed not to hold meetings involving a majority of legislators or meetings at which formal action may occur unless the public receives advance notice. It’s been common practice for members of one party to gather before a House session or a committee meeting to work out their approach.

The agreement also bars two or more members of the House from communicating electronically — via encrypted messaging apps, for example — unless “written minutes of such meeting are made publicly available upon request.” Under a memo set to be sent to all House lawmakers, legislators also will be barred from automatically deleting those messages.

The House will cover $13,000 in attorney’s fees for Epps and Marshall under the settlement.

Once finalized, the deal will hold unless lawmakers amend the state’s open-meetings law. Epps told The Denver Post on Tuesday that she plans to file a bill proposing amendments during the coming session, which will begin in January.

Epps wants changes to the open-meetings law beyond what’s described in the settlement. But the Denver representative said she was optimistic that House leadership had taken “meaningful steps” to improve the chamber’s transparency and obedience to state law, even if “we should not have to file a lawsuit, as the people who make laws, to get ourselves to agree to follow the law.”

Marshall, of Highlands Ranch, said the current open-meeting law is unworkable, given modern technology and the needs of legislative deliberation. Rather than ignoring an impractical statute, he said, lawmakers should update it so they’re in compliance.

“We need to get something workable. I’m pretty agnostic, to be honest, of what comes out of the sausage-making,” Marshall said of the coming legislative debate. “I just want to make sure we’re not hypocrites and we follow what the law’s supposed to be.”

In a statement, McCluskie and Duran — the House’s two top officials — said they “believe deeply in the values of transparency and open government, and through this agreement, we continue our commitment to ensuring full public access, transparency and fairness in the legislative process.”

A House Republican spokesman said the caucus will hold a meeting in the coming days to discuss the deal.

Epps and Marshall filed the suit in early July, accusing the House of routinely violating open-meetings laws. They alleged that Democratic lawmakers would privately meet before public committee meetings to discuss legislation and would communicate electronically during those meetings.

The brief but contentious lawsuit was launched by two of the House’s newest members. It had sparked frustration from their colleagues in the sprawling Democratic caucus — which, despite scoring key wins on policy priorities this year, ended the legislative session with an acrimonious caucus meeting attended by much of the press corps.

The suit threatened to further exacerbate lingering frustrations heading into 2024.

Epps and Marshall had asked a judge to determine that the challenged practices violated state law and to bar the legislature from using them. The settlement effectively hits the second goal, without the House acknowledging wrongdoing.

The deal comes as the legislature’s Democratic leaders fight another lawsuit, filed by a conservative political group, accusing the party’s lawmakers of using a private voting system in violation of state law. That suit is ongoing, but legislative leaders have argued the system — used to rank Democratic lawmakers’ budget priorities — doesn’t violate the law.

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