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 and boxed out the public from the legislative process.

Reps. Elisabeth Epps and Bob Marshall, both of whom just finished their first year 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 and discuss votes privately during public committee meetings, and that the members of legislative committees would meet privately among other members from their own party to discuss legislation before those meetings.

Legislators from both parties would also gather in unannounced, weekly caucus meetings during the session to discuss legislation, the suit alleges. Epps and Marshall also accuse their leadership of directing legislative aides “to omit or disguise these mandatory meetings from Representatives’ calendars.”

The suit alleges that the use of Signal, the encrypted messaging app that can automatically delete messages, and the prevalence of private meetings violate the state’s open-meeting law, which requires timely public notice (as well as recordkeeping allegedly absent from those meetings) when two or more public officials meet to discuss public business.

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 allegations, like the use of encrypted messaging and unannounced caucus meetings, are open secrets in the Capitol, and the lawsuit asks a Denver court to declare them illegal and to issue an injunction barring legislators from making any further use of those practices.

But Epps and Marshall have not yet filed to hold a hearing and further seek that injunction. That proceeding, should it happen, would open the door for individual legislators to testify under oath.

“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.

In a statement, the House Republicans’ deputy chief of staff, Roger Hudson, criticized the “infighting and expense” of the lawsuit. But he said that his caucus believes the public deserves “access to their government through comprehensive open meetings and open records laws — we welcome any conversation that will update our statutes to keep up with rapidly evolving technology.”

Epps said the alleged open-meeting violations included the use of Signal by legislators during committee meetings. 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 and in violation of state law.

Epps said the practices 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. She and Marshall wrote that legislators were put in the “untenable” position of either participating in the alleged violations (as Epps acknowledged she did to some degree) or refuse and be boxed out of key policymaking discussions.

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

The suit adds another layer of tension atop the historically large House Democratic caucus, and in particular between Epps and McCluskie. Epps had previously chafed at how her bill to ban the sale or purchase of assault weapons was introduced, and in a meeting in front of the rest of the caucus on the last night of this year’s session, Epps criticized McCluskie’s leadership at length.

McCluskie’s response — in which she said they weren’t communicating well and pledged to continue working to build relationships — drew applause from many of the lawmakers present.

In their lawsuit, Epps and Marshall wrote that they “have no confidence” that the practices will change without a court’s intervention. It echoes comments Marshall made on the floor of the House on the last night of session in early May: He told fellow legislators that they could exempt themselves from the open-meeting law if they wanted to.

But they hadn’t, he said, and he planned to take action to address it.

The suit also alleges that in 2022, at least one House staff member took concerns about open-meetings violations to leadership, with proposed solutions, and that those concerns were “dismissed.”

Jeff Roberts, the executive director of the Colorado Freedom of Information Coalition, called the lawsuit “a really big deal.”

“This is an effort by these two lawmakers to expose what is really going on, and to show that the law is not being abided by,” he said.

Roberts noted that the lawsuit doesn’t challenge the use of another opaque system used by Democratic lawmakers, in which legislators vote privately to determine budget priorities. The results of that internal balloting were released earlier this year to the Denver Post, albeit without an accounting of how individual legislators voted.

Epps said she plans to bring a bill to amend the state open-meeting laws this year and that challenging the practices now is a way to further the public’s awareness and ensure that bill receives a fair hearing.

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