A lawsuit seeking to obtain records from Democratic lawmakers affiliated with the Colorado Opportunity Caucus has been thrown out by a Denver District Court judge.

On July 17, Judge Ericka Englert dismissed the April lawsuit filed by progressive activist Derrick Blanton, who was represented by attorney Scott Moss.

According to 9News, Blanton sought membership lists, attendee records, financial documents, event agendas, and policy presentation materials from a Vail retreat held by the caucus in October of last year.

The retreat was paid for by One Main Street Colorado, and led to ethics complaints filed against the caucus by Moss on behalf of Colorado Common Cause in November. 

According to those complaints, One Main Street organized a closed-door “summit” for business advocates to “educate” Opportunity Caucus members on issues important to business interests.

Legislators couldn’t afford the $25,000 cost of their rooms at the hotel, the complaint said, “so they asked One Main Street to pay that bill”.

“One Main Street paid for legislators’ rooms as requested and also appears to have funded other expenses of the legislators’ Summit, including staff effort and food and drink,” the complaint said. “In short, OMSC wielded undisclosed influence over a large number of Colorado legislators by paying significant costs of the event, including their individual travel expenses.”

Blanton’s open‑records request focused on Sen. Lindsay Daugherty and Rep. Sean Camacho, but the Office of Legislative Legal Services told him it had no records that met the parameters of his request.

The lawsuit claimed the caucus was a public entity subject to the state open records law. 

That was disputed by the legislature’s attorneys, who responded that the caucus “is not an entity created within the Colorado General Assembly, but rather it is a separate 501(c)(4) nonprofit  and that the state’s open records act “is not the mechanism” to obtain the records sought by Blanton.

The caucus, in its response, said the records fall under its First Amendment right of freedom of association and that, because the caucus is not a public entity, Blanton cannot demonstrate that CORA applies.

A hearing was held on July 15. The caucus, represented by attorney Scott Martinez, presented arguments in favor of a motion to dismiss under the state’s anti-SLAPP statute, which allows for an expedited hearing within 63 days of a lawsuit’s filing.

Englert noted in her ruling that a private entity can be subject to the state’s open records law but only under nine factors that would determine if the caucus was a public entity. 

Those factors included whether there was public funding, a commingling of funds, whether the activity was conducted on publicly owned property, whether services were an integral part of a public agency’s decision-making process, whether the private entity was performing a government function that a public agency would otherwise perform, whether the public agency has a “substantial financial interest” in the private entity and “for whose benefit the private entity was functioning.”

Englert, in her ruling, decided the state’s anti-SLAPP statute did apply. She also ruled that Blanton failed to demonstrate that the caucus was subject to the state open records act and that he could not expect success at trial.

Blanton claimed that because the legislature was paying the caucus’s attorneys’ fees in the ethics complaint, the caucus became a public entity. 

Englert disagreed, based on the nine factors. “There is no dispute” that the caucus is a private non-profit,” she wrote.

“The Court finds that the fact that Defendants Camacho and Daughtery [sic] asserted that [the caucus] is part of the government in an ethics inquiry is insufficient evidence for this Court to find [the caucus] is essentially a public entity and thus subject to CORA under the [nine factors] analysis.”

Daugherty said in a statement this week that “The dismissal of this meritless lawsuit confirms what we have known from the start. This was a frivolous lawsuit intended not to champion transparency but simply an attempt to harm and harass members of the caucus and score cheap political points.”

Since the lawsuit was filed in June, two caucus members have lost their efforts to win a second term in the Colorado House: Camacho and Jacque Phillips of Thornton.

The separate ethics complaints are still under investigation by the state ethics commission. One complaint was dismissed against the then-Rep. Shannon Bird as she was not with the caucus at the time of the retreat.

Three others were filed against caucus members who are either no longer state lawmakers (Sen. Dafna Michaelson Jenet) or will no longer be in the legislature come January (Camacho and Phillips).