Colorado Civil Justice League

Governor Polis vetoed two bills that put employers in the crosshairs for still more lawsuits, improving the product of this year’s Colorado General Assembly.  Still, legislators passed 25 bills that use the threat of litigation for enforcement, either by creating private rights of action (PROA) or defining new “deceptive trade practices” under the Colorado Consumer Code.

To their credit, legislators passed two bills to enhance protections against lawsuits:

Senate Bill 58, sponsored by Sens. Dylan Roberts (D-Avon) and Mark Baisley (R-Woodland Park) and Reps. Shannon Bird (D-Westminster) and Briana Titone (D-Arvada), created protections for property owners to allow limited public access through their property to reach or extend hiking trails, including to some of Colorado’s 14,000-foot mountain peaks.

House Bill 1309, by Reps. Elizabeth Velasco (D-Glenwood Springs) and Rick Taggart (R-Grand Junction) and Sens. Roberts (D-Avon) and Janice Rich (R-Grand Junction), extends immunity from liability for individuals or organizations that assist with search and rescue operations.

Both bills were supported by Colorado Civil Justice League, as was Senate Bill 129, by Sens. Chris Kolker (D-Littleton) and Byron Pelton (R-Sterling) and Reps. Chris Kennedy (D- ) and Lisa Frizell (R-Castle Rock), which prohibits public agencies from requiring nonprofits to disclose data about their members. read more…

From The Denver Post:

By Mark Hillman

Last year’s lawsuit binge by the Colorado legislature is only getting worse.

Rather than use the executive branch to enforce laws (like we learned in school), legislators continue to write bills using private lawsuits for enforcement.  That means our laws are enforced not by an agency with experience handling a specific type of claim.  Instead, enforcement lawsuits encourage anyone who believes she was wronged to file a lawsuit against the supposed offender.

This is poor public policy because billboard lawyers have little accountability and judges are left to sort out all manner of claims from employment disputes to environmental regulations.  While executive branch “bureaucrats” may make mistakes, at least they are accountable to the governor who appointed them and to the legislature that controls their purse strings.

In 2023, a record 25 bills used private lawsuit enforcement, according to Common Sense Institute.  As of March 14, at least 37 such bills have been introduced this year. read more…

Published at ColoradoPolitics.com.

On Feb. 7, a Colorado Senate committee heard heart-rending testimony from people who suffered sexual abuse beginning as minors at the hands of a trusted adult.  These witnesses asked lawmakers to pass SCR 1, offering voters an amendment to the Colorado constitution to allow retrospective lawsuit legislation.

Simply put, it would allow government to change the rules many years after the fact – not to put an abuser in jail but to file a lawsuit though almost never against the actual abuser.

Anyone hearing the horribly scarring experiences of these victims feels a very human desire to punish anyone responsible.  But we must first recognize the difference between prosecuting the actual predator and filing a civil lawsuit.

The ultimate form of accountability is to put predators in prison where they cannot prey on other children.  Currently, there is no limit on criminal charges for any sex offense against a child that occurred prior to 1996.  So, for anyone born after 1981 (now age 42 or younger), the ability to press charges against a child predator remains, although proving those charges many years after the fact and “beyond a reasonable doubt” (the standard for a criminal conviction) can be daunting.

The standard for a civil lawsuit is much lower, “a preponderance of evidence” or more than 50% likely to be true.  That shifts the legal burden in favor of the victim but creates genuine issues of fairness for the accused defendant.

However, the defendant in a civil lawsuit is almost never the person who committed the sexual abuse.  That’s because the perpetrator, if not in jail or deceased, is usually “judgment proof” – i.e., has little income or assets.  A plaintiff’s lawyer will almost never file a lawsuit against a child predator who cannot possibly pay up.

Instead, civil lawsuits are brought against institutions that employed or supervised the perpetrator and do have enough resources to pay the monetary damages a jury might award.  Civil defendants are likely to be schools, municipalities that offer youth activities, organizations like Boy Scouts of America and churches.  Sometimes these institutions were indeed negligent.

In 2021, the legislature entirely eliminated any time limit to bring a lawsuit for childhood sexual abuse after Jan. 1, 2022.  That bill also eliminated the statute of limitation for existing claims.  Because state law allowed these lawsuits to be filed six years after the victim reached age 18, there is now no statute of limitations for childhood sexual abuse claims by any victim born after Jan. 1, 1998.

But just as it’s difficult to prove a criminal case from 20 years ago, it can be virtually impossible for a defendant employer to find records showing how the accused person was supervised 20 years ago.

One defense attorney told the Senate committee, “I’ve addressed claims from the 1940s.”  Witnesses are dead, and all the documents and evidence are long gone.  The people in charge back then are no longer around or even alive.

After legislators passed a retrospective 2021 bill to allow lawsuits for abuse back to 1960, public schools were often targets.  But even if administrators, teachers or coaches were at fault back then, they are long gone today.  If a lawsuit for heinous conduct in 1960 or even 1980 is successful, the punishment won’t be meted out against the people at fault.  Instead, the school ordered to pay, say, $10 million in damages would have no choice but to take that money from classrooms serving students today because you can’t buy insurance for 40-year-old claims.

Is that truly justice?

That’s why just last year the Colorado Supreme Court ruled unanimously that retrospective legislation creating new liability for past actions is prohibited by the Colorado Constitution.  The court’s role as a “truth seeker” requires adversaries to each produce their best evidence to prove their case.  However, truth cannot be found if a claim is so old one party has no evidence to defend itself.

SCR 1 also likely fails two other constitutional tests – due process and takings.  Legislators should recognize these infirmities and not make more political promises that won’t stand up in court.

Bill sponsors want to protect kids.  In fact, current law does protect today’s kids by allowing criminal and civil actions without limitation reaching back 10 years or more.

While SCR 1 seeks to right past wrongs, it does so through selective litigation that doesn’t target sexual predators but instead targets schools and institutions for wrongs committed by people who are no longer around to suffer the consequences.

Originally published in Colorado Politics.

By Mark Hillman

Businesses that fuel Colorado’s economic engine can’t be blamed for cringing at the specter of the Colorado legislature’s return this month.  Plaintiffs lawyers, however, are not cringing.  Instead, the people who pay to put their faces on billboards along our busiest highways are licking their chops.

Last year, lawmakers went on a lawsuit binge, introducing a record 25 bills that used private lawsuits for enforcement, rather than entrusting enforcement to a government agency.  According to the Common Sense Institute, 43 similar bills have been introduced since 2019.

Using litigation for enforcement violates the constitutional separation of powers.  As most of us learned in school, the legislative branch writes the laws, the executive branch enforces the law, and the judicial branch applies or interprets the law.  Enforcement agencies are accountable to our elected officials; that’s why enforcement of state laws is typically their responsibility.  Billboard lawyers, by contrast, are accountable to no one except their clients, and both are given an incentive to sue by this misguided legislation.

Lawsuits should be a last resort, used when all other options are exhausted.  Instead, private lawsuits make litigation a primary means of enforcement.  A business owner’s first formal notification of a complaint shouldn’t be when served with a lawsuit. read more…

Jordan Lipp, a member attorney at Childs McCune, has been selected as 2023 Lawyer of the Year by Colorado Civil Justice League.  He will receive this award at CCJL’s Legislative Awards Luncheon on Oct. 10.

A longtime member of CCJL’s Legal Advisory Board, Jordan has broad experience representing manufacturers, including car, truck, farm and construction machinery, and oil and gas companies.  He also works regularly with companies regulated by the Food and Drug Administration.

However, Jordan’s expertise in outdoor recreation has been particularly valuable to CCJL and its members.  Jordan was instrumental in drafting recent amendments to provide liability protection for agri-tourism.  He likewise has practiced extensively in the Ski Safety Act and Equine Activities Act.

When a bill to address landowner liability was introduced in the legislature earlier this year, Jordan was our first call to evaluate the bill and suggest improvements.  He jumped right in and has worked closely with proponents.  He also provided informed and persuasive testimony during the bill’s only hearing.  He has continued to work on behalf of CCJL with the Colorado Recreational Use Coalition during the interim.

Former Justice Rebecca Kourlis will keynote the Oct. 10 awards event, which will also honor legislators with the Common Sense in the Courtroom Award.  The event is sponsored by American Furniture Warehouse, COPIC, Colorado Hospital Association, State Farm, Rocky Mountain Mechanical Contractors Association, Husch Blackwell, Spencer Fane and Wheeler Trigg O’Donnell.

DENVER — Colorado Civil Justice League announced winners of its Common Sense in the Courtroom Awards, given to state legislators who have demonstrated a commitment to curtailing lawsuit abuse and protecting small business and working families from the cost of frivolous litigation.

Awards will be presented at a luncheon on Oct. 10 at the Denver Four Seasons, sponsored by American Furniture Warehouse, COPIC, Colorado Hospital Association, State Farm, Rocky Mountain Mechanical Contractors Association, Husch Blackwell, Spencer Fane and Wheeler Trigg O’Donnell.

CCJL is the only organization in Colorado exclusively dedicated to stopping lawsuit abuse while preserving a system of civil justice that fairly compensates legitimate victims.

“Common Sense in the Courtroom requires justice for those who have been harmed by someone else, balanced by fairness for those who may be wrongfully accused,” said CCJL executive director Mark Hillman.

Unfortunately, the Colorado General Assembly created too many new opportunities for lawsuits – against employers, property owners, and manufactuers – during its 2023 legislative session.

This continues a dismal trend of creating higher costs for Colorado businesses.  A new study by Common Sense Institute shows that in just the past four years, the state legislature has passed at least 43 bills that expand litigation.

However, bipartisan coalitions came together to put the brakes on expansions of lawsuits by creating new opportunities to sue for “emotional damages” or to seek treble damages.

“At CCJL, we are grateful for the bipartisan support of legislators who understand the importance of an efficient and balanced court system to our state’s economic health,” Hillman said.

Common Sense in the Courtroom Award recipients include:

• Representatives Ryan Armagost (Bethoud), Shannon Bird (Westminster), Rod Bockenfeld (Watkins), Scott Bottoms (Colorado Springs), Mary Bradfield (Colorado Springs), Brandi Bradley (Littleton), Marc Catlin (Montrose), Ken DeGraaf (Colorado Springs), Gabe Evans (Fort Lupton), Lisa Frizell (Castle Rock), Anthony Hartsook (Parker), Richard Holtorf (Akron), Stephanie Luck (Penrose), Mike Lynch (Fort Collins), Bob Marshall (Highlands Ranch), Barbara McLachlan (Durango), Rose Pugliese (Colorado Springs), Marc Snyder (Manitou Springs), Matt Soper (Delta), Rick Taggart (Grand Junction), Ron Weinberg (Loveland), Don Wilson (Monument), and Ty Winter (Trinidad).

• Senators Mark Baisley (Woodland Park), Bob Gardner (Colorado Springs), Joann Ginal (Fort Collins), Barbara Kirkmeyer (Brighton), Larry Liston (Colorado Springs), Paul Lundeen (Monument), Kyle Mullica (Thornton), Byron Pelton (Sterling), Rod Pelton (Cheyenne Wells), Kevin Priola (Henderson), Janice Rich (Grand Junction), Dylan Roberts (Eagle), Cleave Simpson (Alamosa), Jim Smallwood (Parker), Kevin Van Winkle (Highlands Ranch), Perry Will (New Castle), and Rachel Zenzinger (Arvada).

Recently at Gazette.com, Colorado Springs Chamber of Commerce president Johanna Reeder Kleymeyer offered a concise explanation of the primary barrier to construction of affordable entry-level housing in Colorado:

Construction defects lawsuits in Colorado have become a business unto itself. Law firms make millions by hiring forensic experts to “find” defects for up to six years after construction. When one defect is found in one unit, it is then assumed that the same defect is present in all units within the project.

…

The next step is to engage the insurance company of the general contractor, and potentially all subcontractors, and any architect or engineer on a project hoping to secure millions in settlement of the defects. Once a settlement is reached based upon the cost to “repair,” the law firm takes a percentage (30-40%) of the award, and the remainder goes to the HOA to resolve the defects. With only a portion of the settlement, many residents cannot actually complete the repairs. The only winners in this system are the trial lawyers.

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One solution that the builders have requested for years is the right to repair. This would allow the contractor to fix the problems identified with the cooperation of the owners. These repairs would address the list identified and be paid for by the contractor. The owners win because the repairs are made. The contractor wins because they want a positive relationship with their buyers and can control the costs associated with the repairs. Fortunately, the trial lawyers cannot collect a large payday because there is no financial settlement.

Construction defects do occur. Homeowners have a right to have them repaired. The laws in the state of Colorado do not strike a balance and have created significant risk to builders.

From Colorado Politics op-ed by CCJL executive director Mark Hillman:

State Rep. David Ortiz (D-Littleton) makes a compelling advocate for the rights and struggles of disabled Coloradans.

“I lived 30 years as an able-bodied leg-walker, a five-minute-mile running, hard-charging combat aviator – until a crash in Afghanistan left me paralyzed from the waist down,” he told the House Judiciary Committee.

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His House Bill 1032 would change Colorado law to specifically allow lawsuits regarding disability access violations to seek “emotional distress” damages of up to $642,180 and to require defendants to pay attorney fees and costs for prevailing plaintiffs.

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That’s where Coloradans who have defended against disability lawsuits cry foul.  HB 1032 doesn’t increase damages only in cases in which violations are “blatant” or “obvious.”  It creates a six-figure incentive to litigate accessibility problems rather than resolve them.  Even the bill’s supporters acknowledge that lawsuits typically take two years to resolve.

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“In my experience, the best laws have both a carrot and a stick,” observed Rep. Marc Snyder (D-Manitou Springs).  “I see a lot of sticks here, but I don’t see any carrots.”

Except for a few bad actors, the most efficient means of resolving accessibility problems might be personal contact with the business.  Litigation should be a last resort.

From the Denver Gazette, op-ed by CCJL executive director Mark Hillman:

Last year, the Colorado General Assembly demonstrated the good sense to pass Senate Bill 115, recogning that property owners are not liable for actions committed on their property by criminals.  It didn’t matter, legislators agreed, if the property owner operated a controversial business.  Ultimate responsibility for harm rests with the person who pulled the trigger.

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Less than a year later, some legislators now propose that Colorado turn this logic on its head in order to make another controversial industry – firearms manufacturers and retailers – liable for others’ irrational actions.  This is akin to holding car manufacturers responsible for drunk drivers or, worse, for a deranged individual who uses a vehicle to run down pedestrians.

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Understandably, lawmakers are desperately searching for elusive solutions to the tragedy of mass shootings.  Even “red flag laws” have not been especially effective in proactively stopping potential mass shooters, so proponents now seek to harass gun manufacturers out of business through endless litigation.  That may feel good in the heat of the moment, but this bill will do nothing to stop criminals or the mentally ill from inflicting harm on innocent Americans.

DENVER — Colorado Civil Justice League announced winners of its  Common Sense in the Courtroom Awards, given to state legislators who have demonstrated a commitment to curtailing lawsuit abuse and protecting small business and working families from the cost of frivolous litigation.

Awards will be presented at a luncheon on Oct. 7 at the Denver Four Seasons, sponsored by American Furniture Warehouse, COPIC, Colorado Hospital Association, State Farm, Rocky Mountain Mechanical Contractors Association, Husch Blackwell, Spencer Fane and Wheeler Trigg O’Donnell.

CCJL is the only organization in Colorado exclusively dedicated to stopping lawsuit abuse while preserving a system of civil justice that fairly compensates legitimate victims.

“Common Sense in the Courtroom requires justice for those who have been harmed by someone else, balanced by fairness for those who may be wrongfully accused,” said CCJL executive director Mark Hillman.

When the Colorado General Assembly adjourned in May, it’s record on civil justice was nothing to write home about.  This was no surprise given the expansions of liability handed to TV lawyers over the past four years.  But for Colorado businesses, it was another round of “the beatings will continue until morale improves.”

Legislators did restore sanity to premises liability law (Senate Bill 115), stopped an attempt to undermine employers’ ability to make workplace safety decisions (House Bill 1152), and put the brakes on an attempt to kill one of the few remaining protections against frivolous lawsuits (HB 1272).

“At CCJL, we are grateful for the bipartisan support of legislators who understand the importance of an efficient and balanced court system to our state’s economic health,” Hillman said.

Unfortunately, legislators cast too many votes to expand liability and to transfer or entrust responsibility for enforcing our state’s laws to private contingency-fee lawyers.

Common Sense in the Courtroom Award recipients include:

Representatives Mark Baisley (Roxborough Park), Shannon Bird (Westminster), Rod Bockenfeld (Watkins), Mary Bradfield (Colorado Springs), Terri Carver (Colorado Springs), Marc Catlin (Montrose), Tim Geitner (Peyton), Richard Holtorf (Akron), Colin Larson (Littleton), Stephanie Luck (Penrose), Mike Lynch (Wellington), Julie McCluskie (Dillon), Hugh McKean (Loveland), Barbara McLachlan (Durango), Rod Pelton (Cheyenne Wells), Andy Pico (Colorado Springs), Kim Ransom (Douglas County), Janice Rich (Grand Junction), Dylan Roberts (Eagle), Shane Sandridge (Colorado Springs), Marc Snyder (Manitou Springs), Matt Soper (Delta), Kerry Tipper (Lakewood), Alex Valdez (Denver), Tonya Van Beber (Eaton), Kevin Van Winkle (Highlands Ranch), Perry Will (New Castle), David Williams (Colorado Springs) and Dan Woog (Erie).

Senators Don Coram (Montrose), Bob Gardner (Colorado Springs), Joann Ginal (Fort Collins), Dennis Hisey (Colorado Springs), Chris Holbert (Douglas County), Barb Kirkmeyer (Brighton), Larry Liston (Colorado Springs), Paul Lundeen (Monument), Kevin Priola (Henderson), Ray Scott (Grand Junction), Cleave Simpson (Alamosa), Jim Smallwood (Parker), Jerry Sonnenberg (Sterling), Rob Woodward (Loveland) and Rachel Zenzinger (Arvada).