Two state representatives are suing Democratic and Republican leaders of the Colorado House for allegedly violating Colorado’s Open Meetings Law (COML). The lawsuit, filed by state Reps. Bob Marshall (D-Highlands Ranch) and Elizabeth Epps (D-Denver), claims that both the majority and minority caucuses routinely violate COML via unannounced in-person meetings and the regular use of the encrypted Signal app, which automatically deletes messages after a set period of time.
The COML requires that meetings addressing public business be open to the public, and the statute defines a meeting as “any kind of gathering, convened to discuss public business, in person, by telephone, electronically, or by other means of communication.”
The complaint cites the Colorado Times Recorder’s recent reporting on House Republicans’ use of a group chat app to coordinate their final-day walkout from the chamber floor, as explained by Rep. Matt Soper (R-Delta) during a radio interview.
“They were running an amendment,” said Soper. “So we have the Rule 16 vote. We were talking. Do we walk out?Do we not walk out? And we have a group chat. And I wrote, ‘Walk, Walk now.’ And there was still some negotiations about, well, do we wait for two more of these votes? And I just packed up my bag, stuck my laptop in it, walked around to the front, and I walked straight down the center aisle.”
Soper and House GOP leadership subsequently responded to the Colorado Times Recorder’s open records request by saying they had “no responsive records,” which strongly suggested the use of Signal or another self-deleting messaging app.
As Marshall and Epps’ lawsuit states, “both the Democratic and Republican Caucuses regularly utilized Signal to discuss public business outside of public view.” Multiple sources confirmed to the Colorado Times Recorder that Signal use is widespread at the state Capitol.
The Colorado Open Records Act lacks specific regulations about the preservation of written communications, but, as stated above, the COML is more precise about the definition of a meeting.
Marshall, an attorney, has been a champion of public meeting transparency even before becoming an elected official himself. Last year he sued the Douglas County School Board for COML violations committed by its conservative majority as they planned to fire then-Superintendent Cory Wise. As reported by the Denver Post, a judge ruled that “Individual Defendants’ conduct was in violation of COML.” The Board has since rejected a settlement agreement with Marshall that would pay his $66,000 in legal fees and instead will proceed to trial, which could cost the district upwards of half a million dollars.
In a joint statement released Monday afternoon, Marshall and Epps adopted a relatively conciliatory tone, at least as much as one can have when suing one’s colleagues and employer.
“Our goal is to usher the legislature into a workable open and transparent governmental framework,” the pair wrote. “We assign no moral fault to current or past colleagues. We both entered electoral political service from backgrounds that made us particularly sensitive to the need for transparency in government. Without those unique perspectives, we may have accepted the legislature’s practices as normal or inevitable. But violating COML is not inevitable and must not be accepted as normal. Good governance is a nonpartisan issue. Despite representing opposite ends of the Democratic political spectrum, we share a deep commitment to accessible government in which Coloradans can be proud.”
As noted by the Denver Post, Marshall and Epps have not yet (as of Monday afternoon) formally asked the court to schedule a hearing. This presumably leaves at least some window of time open for informal negotiations with House Democratic and Republican leadership to reach an agreement over caucus policy and/or a commitment for a bill next session. Marshall told Colorado Public Radio’s Bente Birkeland that he and Epps would prefer not to go to trial, but rather to negotiate “a good end to the situation.”
Their attorney Steve Zansberg provided the legal term for that solution: a stipulated preliminary injunction. It would involve getting all the parties to agree to forego the practices being challenged, i.e., communicating over Signal and holding unannounced undocumented in-person meetings. However, that process can’t begin until all the parties have been officially served and Zansberg says he hasn’t yet made contact with the House Republican caucus nor Minority Leader Mike Lynch, but expects to do so before the end of the week.
