After two lawmakers alleged in a lawsuit Colorado’s legislature habitually violates the state’s open meetings law, the General Assembly’s Committee on Legal Services on Friday took the first steps to figuring out how to respond legally.

Members of the committee opted to hire two attorneys well known in political circles to represent those named defendants in a lawsuit. Defendants include the entire Colorado House, Speaker Julie McCluskie, House Majority Leader Monica Duran, House Minority Leader Mike Lynch and the House Republican and Democratic caucuses. 

Among the panel’s duties is to select attorneys to represent the General Assembly in litigation. The 10-member committee is made up of five House members and five Senate members. The five House members are technically also defendants in the lawsuit, as members of their respective caucuses and as members of the House. 

The committee doesn’t participate in legal strategy but only as a third-party payer,  the Office of Legislative Legal Services said, a decision the committee made several years ago. 

The lawsuit, filed by Democratic Reps. Bob Marshall of Highlands Ranch and Elisabeth Epps of Denver, claims the Democratic and Republican caucuses each held mandatory secret meetings at least weekly during the 2023 legislative session, directing legislative aides to omit or disguise the meetings on legislators’ calendars. There was no public notice provided and minutes of the meetings were not made available to the public, in violation of Colorado’s law governing open government meetings. 

The meetings were said to include presentations of legislation by bill sponsors, question and answer periods, and discussions of how members would vote on legislation. 

“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,” Marshall and Epps said in the suit filed in Denver District Court on July 7. They are being represented by attorney Steve Zansberg, who also represents Colorado Politics on First Amendment issues.

Perhaps the biggest question of the day, and one that eventually led the committee into a closed-door executive session for legal advice, was how many lawyers they would need to hire.

The attorneys who work for the General Assembly in OLLS are generally not litigators, according to OLLS Director Sharon Eubanks. 

The issue of legal representation raised concerns around conflicts of interest for Sen. Bob Gardner, a Colorado Springs Republican who is also an attorney. He pointed out that the practices of each caucus in the House could differ and that could raise defenses to the lawsuit that might conflict with each other. That would rule out one attorney representing all of the defendants, he indicated.

Another concern is who would represent the entire House of Representatives. The entire General Assembly has been party of a lawsuit, but not the individual chambers, Eubanks said. In those cases, the executive committee, which is made of the leadership of both chambers, spoke for the entire legislature. To apply that analogy to the House, she explained, would mean the speaker, majority and minority leaders would speak for that client in legal representation.

Rep. Ruby Dixson, a Centennial Democrat, suggested hiring counsel for all named defendants and counsel for the House. Given the nature of the complaint, she also advocated for as much transparency as possible. 

The committee met briefly in an executive session to receive legal advice.

Following that conversation, Vice Chair Matt Soper, R-Delta, asked the committee to hire Mark Grueskin to represent the speaker, majority leader and Democratic caucus and to act as co-counsel and lead counsel on representing the full House. Soper also called from John Zakhem be second co-counsel representing the full House, and legal representation for Lynch and the GOP caucus, and with instructions to be given that the two attorneys work together.

That didn’t work for Rep. Mike Weissman, D-Aurora, who made a motion to make Grueskin as the lead among the two attorneys for the House and the Democratic defendants, with Zakhem as lead for Republicans.

But that motion drew objections from Gardner, who said it was “not a workable solution,” and one that he suggested could raise ethical issues. Weissman withdrew his motion, and instead suggested the two attorneys serve as co-counsel, with Grueskin as lead counsel for each of the six defendants (including the House) with Zakhem as co-counsel.

That’s even worse, Gardner said, highlighting the conflict problem.

“I’m astounded,” he said.

Rep. Javier Mabrey, D-Denver, also an attorney, agreed with Gardner.

Mabrey noted the potential for underlying facts that are different and implicate different parties differently. Legally, he said, they should have the right to explore them with their own counsel and to have attorney-client privilege “in one silo.” It’s fundamental fairness, Mabrey added. 

Weissman then moved to have both Grueskin and Zakhem serve as co-counsel for all six defendants, with Grueskin as lead, which raised issues for some members around attorney-client privilege. That motion died on a 5-5 vote with Mabrey voting against along with the Republicans. 

The committee then voted on Soper’s original motion, which Weissman said he would support, and it passed unanimously.

Colorado Politics’ Hannah Metzger also contributed to this report.