Colorado lawmakers’ legal defense of secret ballot system cost at least $54k 

Colorado lawmakers racked up at least $54,000 in legal bills to defend their secret ballot system in court before a judge ordered them to stop using it because it violates the Open Meetings Law.

KUNC News obtained copies of the legal bills through an open records request.

The total price tag for the case is not final. At least one more invoice is expected from attorneys the lawmakers used in their defense. Suzanne Taheri, a lawyer representing the plaintiff who prevailed in the lawsuit, said she plans to also seek court costs from the legislature.

Meanwhile, a spokesperson for Sen. President Steve Fenberg, D-Boulder, did not immediately respond Wednesday to a message from KUNC News asking whether lawmakers plan to appeal the Jan. 5 ruling.

Taxpayer funds have been sent to two separate law firms the legislature hired to defend their use of so-called quadratic voting in district court.

State Rep. Bob Marshall, D-Highlands Ranch, was one of a handful of lawmakers specifically named in the lawsuit and he requested his own legal counsel, paid for by taxpayers. He got approval to use lawyers at the firm Childs McCune for his defense. Records show the firm has billed $36,062 for services through Nov. 30.

All other lawmakers in the case, including Democratic leaders, hired an attorney at Tierney Lawrence Stiles. By comparison, bills from that firm totaled $17,621 through December.

Both of the law firms were paid the same rate of $250 an hour for attorney fees. They also both argued in district court in defense of the secret voting system, which Democratic lawmakers have used since 2019 to help decide which bills should receive a piece of the state’s limited budget.

Judge David Goldberg ruled Jan. 5 the voting system at the state Capitol violated the Open Meetings Law.

State lawmakers “did employ a secret ballot to adopt a position, which is precisely the type of activity prohibited by (the Colorado Open Meetings Law),” Goldberg wrote in his ruling. “The public was thus deprived of the ability to know how their elected representatives voted to prioritize pending legislation, hampering their ability to hold their representatives accountable for how they cast their votes.”

Scott Franz

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KUNC

Advance Colorado, the conservative group that sued lawmakers over quadratic voting, also sought data showing how individual lawmakers voted in the secret ballot process, but Goldberg said he lacked jurisdiction to order the records' release and noted there was a dispute as to whether they even existed.

Separate attorneys, separate taxpayer expenses

Rep. Marshall said he wanted his own lawyer in the case due to a conflict of interest with other lawmakers included in the lawsuit. He said his legal interests were different from legislative leaders and he was singled out in the lawsuit because of previous litigation he has filed alleging open meetings violations.

“I was just a member that was just a user of the (quadratic voting) system, not a designer or controller of anything,” he said.

He also said he might have had different thoughts on how to argue the case in court and whether to appeal.

Marshall’s request for his own separate legal counsel sparked a lengthy discussion at a Capitol hearing last fall. The legislature’s Committee on Legal Services has to approve requests to have the state pay for lawmakers’ attorneys exceeding certain costs. It met during an executive session first to hear from Marshall about his request. The committee ultimately approved the request to pay for two law firms after a public discussion following that executive session. Three Republican members of the committee voted against the request for Marshall’s separate legal counsel.

Democratic Sen. Dylan Roberts supported it, but only after he questioned Marshall about the need to pay for two law firms in the case.

“I just want to make sure that that you understand, and we have out on the record, that hiring separate counsel will be paid for and funded by the taxpayers and that you're aware that hiring additional attorneys in addition to what the rest of the defendants are asking for will result in additional cost to the taxpayers of the state of Colorado,” Roberts said to Marshall.

Marshall said he understood.

“Yeah, but I think we have totally established already that there's a complete potential conflict of interest,” he said. “So again, if you want to assign me one counsel (for the entire legislature) today, let's do it. Let's do it. And I'll have them recused within five days, and we can come back here and do it again.”

Marshall told KUNC News this month he accepted the judge’s ruling banning the use of quadratic voting. He said he was personally not interested in appealing it.

The day the open meetings lawsuit was filed against him and other legislators, Marshall called it a “retaliatory” lawsuit from Republicans done in response to previous litigation he had filed alleging open meetings violations.

“Look forward to humiliating them in court (again…),” Marshall wrote July 26 on X, formerly known as Twitter.

Last year, Marshall sued both Republicans and Democrats in the legislature alleging they were holding caucus meetings away from the public and using encrypted messaging apps to discuss bills. Lawmakers chose to settle that case and pay $13,000 in fees to the attorney who represented Marshall in it.

Michael Fields, the head of the conservative group that filed the more recent lawsuit against Marshall and the legislature over the secret ballot system, said the legal action wasn’t about partisan politics.

“When it comes to transparency and accountability, I don't care if you're Republican or Democrat, we should know how people are voting,” Fields said. “It's easy, especially when you're caught doing something that you shouldn't be doing, saying, ‘Well, it's all about politics, right? It's just partisan, it's Republican versus Democrat.’ I don't think that's the case, and do not care who's in charge.”