The 2018 legislative session produced much political posturing but resulted in comparatively no meaningful policy accomplishments toward reducing litigation
Most significant legislation to pass was re-authorization of the Colorado Civil Rights Division which was due for the periodic "sunset review" to which all regulatory agencies are subject. Because CCRD is the first stop for all employment-related litigation, it is an important mechanism to filter out frivolous claims against businesses. Ordinarily, sunset bills are fairly mundane and characterized by discussions between the regulators and "the regulated" seeking to accomplish the agencies' mission without undue burden on either party.
Instead, the CCRD reauthorization measure (House Bill 1256
, sponsored by Speaker Crisanta Duran, D-Denver, and Sen. Bob Gardner, R-Colorado
Springs) became a vehicle for scoring political points. At the center of this gamesmanship was the Civil Rights Commission's (CRC) handling of
the Masterpiece Cakeshop case
which is now before the United States Supreme Court.
Democrats, viewing the Commission as a bulwark against unfair discrimination toward racial and sexual minorities
chided Republicans for, at one point, blocking funding of CCRD. Republicans, conversely, seized upon statements made by individual CRC commissioners
in the Masterpiece deliberations which have been described by Justice Anthony Kennedy
as "neither tolerant nor respectful." Republicans were also annoyed that Gov. Hickenlooper, in 2017, had appointed a commissioner to fill one of
the seats reserved for representatives of the business community who, in their view, had no business credentials and then reappointed that person,
albeit in a different position, after her confirmation was rejected by the Senate.
Ultimately, another compromise was finally adopted only a few hours before mandatory adjournment at midnight on the final legislative day. That change
mandates partisan (3D-3R-1UA) balance on the commission, adds a third seat for business representatives, and bars a governor from re-appointing
someone who fails Senate confirmation.
Other bills that passed with bipartisan consensus increased the limit on claims brought in county courts (Senate Bill 56) from $15,000 to $25,000 and
resolved inconsistencies between case law and statutory provisions that address damages (Senate Bill 98).
LATE BILLS THREATEN LITIGATION TORRENT
As the legislative session entered its final six weeks, a torrent of "message bills" were introduced in the House - all purporting to address perceived
greed and inequity practiced by business. The irony, however, is that in each of these bills, the proposed remedy to "corporate greed" was to create
new incentives for personal-injury lawyers to file lawsuits against suspect businesses. Seriously, is the best policy remedy to unleash a hoard
of profiteering trial lawyers?
Fortunately, through the efforts of Colorado Civil Justice League and our allies in the business community, these bills were shown to be impractical
and an intrusion into private rights of contract. Both were defeated but are likely candidates for re-introduction in 2019.