Product 1
< Back to 2020 – 2021 Watch List

Colorado

The “Centennial State” had a troubling year with all three of its government’s branches. The judicial branch expanded the liability of businesses and other organizations that operate in the state. The executive branch intertwined itself with monied interest groups, allowing them to influence the governor’s office. Meanwhile, the legislature has refused to face the costs COVID-19 has brought to businesses.

SUPREME COURT EXPANDS PREMISE LIABILITY

Colorado’s liberal Supreme Court has expanded premises liability and is poised to increase already-high defendant discovery costs.

In 2020, the Court expanded the liability of any business, organization, or individual when a third party engages in a premeditated criminal act on its property. That expansion of liability results from the Court’s ruling in a case arising out of a mass shooting at a Planned Parenthood facility in Colorado Springs. The Court ruled that a reasonable juror could find that the shooter was not the predominant cause of the deaths and injuries, but could conclude that Planned Parenthood bore responsibility and could be held liable. The Court reasoned that given Planned Parenthood’s knowledge of threats against the organization, a juror could find that that the organization should have taken actions such as hiring more security, and installing a fence and steel doors. The Court reached this decision even as evidence indicated that the organization had provided physicians at its facilities with self-defense training and even offered them with custom-fitted bulletproof vests free of charge. As a result, the Colorado Supreme Court ruled that the trial court wrongly dismissed the claims against Planned Parenthood.

The outcome places any organization – whether it is a synagogue, advocacy group, or controversial business – at risk of a lawsuit if attacked. As the dissenting justices observed, “dangerous consequence of this move is to subject a landowner to liability for the irrational actions of a mass murderer, who has no concern about detection or death.” If threatened, an organization may have to choose between installing extraordinarily expensive and potentially ineffective fortifications or liability should there be an attack.

The high court is also expected to rule on a case that could increase defendants’ discovery costs by requiring medical organizations to identify all non-parties who received similar care to that of the plaintiff and procure and share their medical information.

A GOVERNOR FOR SALE?

After running a self-financed campaign to prove he was not beholden to wealthy interest groups, Governor Jared Polis (D) is gladly allowing those groups to pay more than $1 million worth of salaries in his office. Under secretive agreements fettered with non-disclosure clauses, interest groups like the U.S. Climate Alliance and the Emerson Collective have been able to place employees in the governor’s office. Advocacy groups are attempting to implement their agenda by directly funding attorneys and policy staff within the government itself.

Governor Polis’ top adviser on climate change, who is responsible for “moving Colorado to 100 percent renewable energy and hitting pollution reduction targets”, is funded by the U.S. Climate Alliance. The Alliance works with the government to combat climate change by ensuring member states voluntarily abide by the Paris Climate Accords. It conducts a program designed to embed staff funded by affiliated non-profits into executive branch offices of the governors of member states. These “sponsored” employees work as de facto environmental and climate experts and have full latitude to work on litigation and policy matters.

This effort to implant staff is nominally overseen and run out of the Ted Turner funded UN Foundation, a 501(c)(3) nonprofit with a heavy focus on environmental issues, although several other nonprofits take part in funding and embedding staff as well. These nonprofit organizations include the World Resources Institute, the Georgetown Climate Center, and The Climate Group.

Functionally, to place staffers in executive offices, the Alliance proposes to top aides of a targeted governor that the administration host a staff member who will work solely on climate issues. Should a willingness exist, a partner nonprofit then fully funds that position and the Alliance works with the governor’s office to fill this new role within the administration. While the embedded staff member is paid directly by the government, the state invoices the nonprofit for the cost of that person’s compensation

This individual is treated as a government employee and therefore may suggest regulations, legislation, and policy much like anyone else on state payroll. The significant difference is that an outside entity ultimately funds these individuals’ positions. Because the Alliance is not incorporated and its funding and expenses are spread among several groups, it is difficult to guess the funding levels of its initiatives. However, internal emails obtained via public records requests by the Competitive Enterprise Institute pin the Alliance’s budget for embedded staff at $10 million in 2018, with potential funding increases to $25 million in 2019, and $50 million reportedly sought for 2020.

Governmental use of staff paid for by nonprofits such as the U.S. Climate Alliance raises significant conflict of interest concerns. As these individuals are compensated by the advocacy group that placed them in their role, there is an inherent conflict as to whether the staff member is working to advance the interests of the state or pushing an outside group’s agenda. Those two roles may not necessarily be aligned. While one might assume that nonprofit funded staff would have in mind the best interest of the state in which they are embedded, the optics would almost assuredly be different if a plaintiffs’ law firm or even a large corporation did the same exact thing. For example, consider the outcry that would likely result if the tobacco industry embedded a staff member in the state health department. Similarly, what would be the response to a hedge fund embedding

a top analyst with a state’s pension fund? And why stop at a single position? What if a food manufacturer or organic advocacy group funded an entire division within a state health department or consumer protection agency? As these hypotheticals show, the arrangements in place in certain states with the U.S. Climate Alliance violate both commonsense and basic good government.

LEGISLATORS CALL FOR TRANSPARENCY

Bipartisan legislators and officials have condemned the practice and called for greater transparency. “These are funds the Joint Budget Committee has no discretion or appropriation authority over, and it is something that has caught our attention and something that is concerning,” said Senator Dominick Moreno (D).

Despite the governor’s lead, Attorney General Phil Weiser (D) declined the opportunity to incorporate climate change attorneys funded by a similar group – the Bloomberg-funded NYU State Energy & Environmental Impact Center.

“These are funds the Joint Budget Committee has no discretion or appropriation authority over, and it is something that has caught our attention and something that is concerning.”
– Senator Dominick Moreno

LEGISLATURE REFUSES TO ADDRESS COVID-19 CONCERNS FOR BUSINESS

Colorado is one of the obdurate states that has declined to even introduce legislation addressing liability concerns of schools, businesses, healthcare providers, protective equipment makers, and others during the pandemic. Some businesses are afraid to reopen, given their liability exposure. Colorado’s ski industry, restaurants, railroads, sports franchises and others are all at risk of lawsuits should a customer claim he or she contracted COVID-19 as a result of exposure when visiting. The owner of Royal Gorge Route Railroad, a staple for tourism in Colorado, recognizes that, even with a frivolous lawsuit alleging COVID-19 exposure, given the absence of insurance coverage, businesses are “flapping out in the breeze, and that will put any business out of business.”

In fact, rather than address COVID-19 liability concerns, the legislature passed a series of pandemic-related bills that gave plaintiffs’ lawyers new tools to bring COVID-19 related lawsuits and imposed new obligations on employers. For example, one bill incentives employees who lose their jobs during the pandemic to claim that action stemmed from their raising safety concerns. Another bill exposes businesses to liability if they raise prices on any of a wide range of products during the pandemic. A third bill requires employers to provide paid leave to employees, not only for reasons related to the pandemic, but for a wide range of purposes.

Latest News

View all News