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Dan Pilcher CACI Executive Vice President and Chief Operating Officer
E-Mail: dpilcher@COchamber.com
Friday, March 9, 2012
Florida’s “Sunshine” on Product-Liability Lawsuits Shines on Colorado
Based on a Florida law, a bill, which was introduced in the legislature on February 24th, seeks to turn upside down an important aspect of Colorado’s civil justice law concerning product liability. Should the bill become law, Colorado’s business climate and economic development efforts would take a severe hit.
SB-153 essentially would put into the public domain the sensitive, proprietary information of a company about a product—and then require the company to make the legal argument--a “rebuttable presumption”—that the product is not a “public hazard.”
And what products could be considered “public hazards”? According to the bill, a “public hazard” means “ . . . any device, instrument, or product, or any condition of a device, instrument, or product that has caused injury to a person or his or her property and may foreseeably cause injury to one or more other persons in the future.”
The bill’s summary states that the purpose of the bill is to “ensure that, in any civil or administrative action in any state or federal court or tribunal in this state, information concerning public hazards is not concealed.”
In other words, it appears that the Napoleonic Code undergirds SB-153: the defendant is presumed guilty by the state and must prove his or her innocence to the state. Under Anglo-Saxon common law, by contrast, the defendant is presumed innocent and the state must try to prove its case with evidence to a jury of the defendant’s peers.
The bill would forbid a court from keeping confidential, during the discovery phase of a civil lawsuit, information from the company about its product if the company cannot prove that the information is not related to a “public hazard.” In other words, a company could be sued and its trade secrets, proprietary information and intellectual property would be released into the public domain. Anyone—including the news media or consumer groups—could insert themselves into the discovery process and make public whatever company secrets he or she finds.
During the discovery phase of a lawsuit, the judge would have to rule on whether or not a product is a “public hazard.” This judicial ruling would precede the trial where the jury would hear evidence about the product, which would clearly taint how jurors would view the product.
And what products could be considered “public hazards”? According to the bill, a “public hazard” means “ . . . any device, instrument, or product, or any condition of a device, instrument, or product that has caused injury to a person or his or her property and may foreseeably cause injury to one or more other persons in the future.”
The bill summary states that Colorado courts now can seal court records, issue protective orders and enter into confidentiality agreements about “hazards to public health, welfare and safety.” Consequently, the bill’s summary asserts that the purpose of the SB-153 is to “ensure that, in any civil or administrative action in any state or federal court or tribunal in this state, information concerning public hazards is not concealed.”
SB-153 is sponsored by Senate Majority Leader John Morse (D-Colorado Springs) and is reportedly being pushed by the Colorado Trial Lawyers Association. Entitled “The Sunshine in Litigation Act,” the bill has been assigned to the Senate Judiciary Committee, whose chair is Senator Morgan Carroll (D-Aurora).
On Tuesday, the CACI Governmental Affairs Council agreed to make the defeat of SB-153 a top priority. SB-153 is only the third bill this session that the Council has agreed to make a priority target for business-community opposition.
The business community’s battle against SB-153 is being organized by the Colorado Civil Justice League, which is mutually affiliated with CACI. The CCJL has drafted a fact sheet that explains the business community’s opposition to SB-153.
CACI members who wish to testify against the bill when it is heard, or who wish to have their names listed as being in opposition, should contact Loren Furman, CACI Senior Vice President, State and Federal Governmental Relations, at 303.866.9642.
House Finance Committee Endorses Bill to Provide Training to Unemployment Insurance Benefits Claimants
On Wednesday, the House Finance Committee approved, on a nine-to-three, bipartisan vote, HB-172, which sends the bill to the House Appropriations Committee. CACI supports the bill.
Joining the minority-party Democrats on the Committee to advance the bill were three Republicans: Cindy Acree (Aurora), Kathleen Conti (Littleton) and Spencer Swalm (Centennial).
Voting against the bill were three Republicans: Committee Chair Brian DelGrosso (Loveland), Don Beezley (Broomfield) and Chris Holbert (Parker). Representative Keith Swerdfeger (R-Sterling) was excused.
The CACI Labor and Employment Council endorsed the proposal, which has bipartisan House sponsorship: Representative Crisanta Duran (D-Denver) and Representative Robert Ramirez (R-Westminster).
Loren Furman, CACI Senior Vice President, State and Federal Relations, testified in support of the bill before the Committee. On February 23rd, she testified in support of the measure before the House Economic and Business Development Committee.
According to the bill’s fiscal note, HB-1272 extends until June 30, 2014, enhanced Unemployment Insurance (UI) benefits for claimants engaged in an approved training program for high-demand occupations. The Colorado Department of Labor and Employment (CDLE) is responsible for identifying the occupations.
Currently CDLE can spend $15 million over the three-year period ending June 30, 2012, for enhanced UI benefits. HB-1272 instructs the CDLE to spend an additional $8 million for fiscal years 2012-2013 and 2013-2014. The CDLE’s Division of Employment and Training will have to find “gifts, grants and donations” in the amount of $47,198 to cover its administrative costs.
The bill expands the definition of approved training programs to include employer-based or entrepreneurial training programs approved by the director of CDLE’s Division of Employment and Training.
CACI-Backed Bill to Safeguard Permit Applications Passes Key Senate Committee
Yesterday, the Senate Finance Committee, with a unanimous vote, passed HB-1002, which now moves to the Senate Floor for Second Reading.
The Senate sponsor is Senator Cheri Jahn (D- Wheat Ridge), and the House sponsor is Representative Jerry Sonnenberg (R-Sterling).
Carly Dollar, CACI Governmental Relations Representative, testified in support of the proposal before the Committee. Dianna Orff, representing the Colorado Mining Association, a CACI member, also testified in support of the bill.
Carly also testified in support of HB-1002 before the House Economic and Business Development Committee on January 26th. The House passed the bill on February 22nd on final, Third Reading by a 48-to-17 margin with 15 minority Democrats joining majority Republicans to advance the proposal to the Senate.
Known as the “Creating Level Expectations for Application Review (CLEAR) Act,” the measure was unanimously supported by the six members of the Senate Business, Labor and Technology Committee who were present on February 22nd in a bipartisan fashion.
At present, a business can submit an application for a permit or renewal of a permit to a state agency but, while the application is being processed, the agency or legislature may change the rules, which forces the business to withdraw the application and submit another one. This situation places unnecessary costs on the business in terms of time and resources, in CACI’s view.
By amending the State Administrative Procedure Act, HB-1002 would put in place a standard procedure governing permit renewals and applications for permits if the rule can be changed by the agency or the legislature. HB-1002 would require that the rules in place at the time the application is submitted remain in effect until the agency makes a decision on the application.
CACI worked with the Representative Sonnenberg when the bill was in the House to include language to give permit applicants the option to utilize newer rules if they preferred, as well as to provide an exception if use of the old rules would result in a permitted entity being out of compliance with federal requirements. The bill also provides an exception if a state agency determines that an unsafe situation will likely result form the application of existing rules.
The bill is part of a package of bills being advanced by House Republicans to lighten the state’s regulatory burden on businesses and encourage job creation.
Senate Committee Advances Business Personal Property Tax Relief Bill to Senate Floor
“The pigs are strapping on their wings,” said Senator Michael Johnston (D-Denver), chair of the Senate Finance Committee, after the Committee yesterday gave unanimous, bipartisan support to HB-1029, which sends the bill to the Senate Floor for Second Reading. CACI supports the bill.
The standing joke, of course, about this bill is that the legislature will pass a bill providing some business personal property tax relief to Colorado companies . . . when pigs can fly.
HB-1029 increases the cap for statutory business incentive agreements (BIAs) for local governments from 50 percent of a taxpayer’s business personal property tax (BPPT) liability under current law to 100 percent when the taxpayer establishes a new business facility. The length of the agreement can’t exceed ten years.
The local governments include cities, counties and special districts. According to the bill’s fiscal note, BIAs can be created under either constitutional or statutory authority, depending on the agreement’s scope and type. The agreement may be an incentive payment or tax credit.
The bill, called the “Save Colorado Jobs Act,” is sponsored in the House by Representative Chris Holbert (R-Parker) and in the Senate by Senator Mark Scheffel (R-Parker). Senator Scheffel, a long-time advocate for the gradual elimination of the BPPT, described the bill as taking “one small bite” out of the elephant that is the business personal property tax.
Loren Furman, CACI Senior Vice President, State and Federal Relations, testified before the Committee in support of the bill. The bill is also supported by the Colorado Municipal League and the Special District Association of Colorado.
Loren also testified in support of HB-1029 when it was heard by the House Finance Committee on February 26th. Here’s an edited version of Loren’s prepared testimony on the bill:
We support HB-1029, and we appreciate the effort of Representative Holbert and Senator Scheffel to bring this bill forward.
CACI’s long-term policy has been to advocate for the elimination of this onerous tax on manufacturers and capital-intensive businesses. We recognize that a simple repeal of this tax is unrealistic, however, and would impose serious fiscal burdens on school districts and local governments. So, over the last several years, CACI has supported a gradual and thoughtful reduction of the tax and has worked closely with the legislative sponsors who have carried the many bills that attempted to do this.
A little history . . . In 2009, there was hope that legislation phasing out this tax over a 40-year-period might pass. Ultimately, the legislature was unwilling to enact even this version of the bill and instead created a task force to study this issue. The task force met six times during the summer of 2009 with the intent of studying the impact of the tax and then making recommendations for legislation. Despite the time and energy spent by the group, no legislative recommendations were agreed upon and instead some thought that the University of Denver tax-system study would offer a solution.
I haven’t seen such a solution offered yet. Each year, we’ve seen a bill addressing ways to reduce this onerous tax. We believe it is time to find a working compromise on this issue, and we believe this bill creates that compromise. If this bill were to be enacted, it will send an incredibly strong message to businesses and investors around the country that Colorado is anxious to retain and compete for high-paying jobs.
House Bill to Match State’s Workforce Needs with Graduates of Higher-Education/Vocational-Education System Passes First Senate Hurdle
On Monday, the Senate Business, Labor and Technology Committee approved HB-1061, which would require the state to issue an annual report that compares Colorado’s projected workforce with the projected number of graduates who obtain degrees, certificates and other post-secondary credentials from Colorado’s higher-education institutions and vocational-education providers.
The proposal received a five-to-one vote of support from the Committee members who were present. Senator Jean White (R-Hayden) supported the bill, but Senator Ted Harvey (R-Highlands Ranch) voted against it. Senator Shawn Mitchell (R-Broomfield) was excused.
CACI supports the bill, entitled “The Skills for Jobs Act,” which now moves to the Senate Appropriations Committee.
The measure would require the Colorado Department of Higher Education to consult with the Colorado Department of Labor and Employment, the Colorado Department of Regulatory Agencies and others to produce the study. The report would also identify workforce needs that are not being met by current education and training programs as well as the institutions that can meet the needs by expanding or adding programs. The first report would be due to the legislature by January 15, 2013 and on the same date for each of the following three years. The bill would be repealed July 1, 2016.
Loren Furman, CACI Senior Vice President, State and Federal Relations, testified in support of the legislation before the House Education Committee on January 25th.
On February 10th, the measure cleared final, Third Reading in the House with a vote of 33 to 30. Three Republicans—Tom Massey (Pagosa Springs), Robert Ramirez (Westminster) and Keith Swerdfeger (Pueblo West)—joined the minority Democrats to advance the bill to the Senate. Representative Wes McKinley (D-Walsh) was excused that day, and Representative Randy Fischer (D-Fort Collins) was absent.
The Senate sponsor is Senator Linda Newell (D-Centennial) and the House sponsor is Representative Daniel Kagan (D-Cherry Hills Village).
House Committee Hearing Postponed on CACI-Opposed Credit-History Bill
The House Local Government Committee has removed SB-3 from its agenda for the upcoming hearings on the House Calendar. Last week, the bill had been scheduled for a hearing by the Committee on Monday, March 12th.
CACI opposes the measure. Defeat of the bill is a priority for the CACI Governmental Affairs Council, which created a fact sheet on the bill to distribute to lawmakers.
The House sponsor is Representative Randy Fischer (D-Fort Collins), and the Senate sponsor is Senator Morgan Carroll (D-Aurora),
SB-3 would generally bar employers from using credit histories as a factor in their hiring processes. The bill contains language for an exemption for companies to obtain “consumer credit information” when they are “required by a defense or security contract, including contracts with the Federal Department of Defense.”
The following section was written by Susan McGurkin, CACI Federal Policy Representative, who can be reached at 303.966.9641.
Senator Bingaman (D- N.Mex.) Introduces National Clean-Energy Legislation
Senate Energy and Natural Resources Committee Chairman Jeff Bingaman recently introduced S.2146, the “Clean Energy Standard Act of 2012,” (CES) that is designed to require utilities to generate an increasing amount of the country's electricity through the use of renewable energy such as wind and solar power. Given that this is an election year and that Senator Bingaman is retiring, this bill will most likely not move this session; however, it means to set the stage for a more meaningful debate next Congressional session and be a “conversation starter” for this session.
Among other things, the bill stipulates that, by 2035, 84 percent of power produced by large utilities should come from low-carbon sources. According to the bill’s fact sheet put out by the Senator, the bill’s objectives are to promote a diverse set of sources of low- and zero-carbon electricity generation in the U.S., to drive clean-energy innovation and American ingenuity, and o do so simply, transparently, predictably, and cost-effectively with a long-term market signal. In addition, the document outlines that, beginning in 2015, the CES would set a standard for clean energy on the largest utilities. These utilities would need to sell a percentage of their electricity from clean-energy sources and each year would need to sell a slightly greater amount of clean energy.
To date, the bill was referred to the Committee on Energy and Natural Resources, and there are no proceedings scheduled in the Senate. CACI will continue to monitor the bill’s progress.
For more information on this story, please read “Clean –Energy Bill a Conversation-Starter,” by Amy Harder, National Journal, March 2nd.
“Clean-Energy Plan Seen Benefiting Natural Gas Suppliers,” by Mark Drajem and Justin Doom, Bloomberg, March 4th.
” Reactions to the Clean Energy Act of 2012,” by Brian Lane, ThomasNet News, March 7th.
Cybersecurity Update
On the heels of last week’s article in CACI’s The Colorado Capitol Report discussing the recent federal legislative activity on cybersecurity, CBS’ 60 Minutes ran an interesting story last Sunday that provides further justification for moving forward with federal policy. Steve Kroft reports on the “Stuxnet” computer virus and its potential connection with Iran’s nuclear program. It is a quick read or listen, and more information is provided below.
In addition, the cybersecurity bill introduced last week by Senator John McCain (R- Ariz.), “Strengthening and Enhancing Cybersecurity by Using Research Education, Information and Technology Act” was recently filed and given the number of S. 2151. Again, this is the Republican response to S. 2105, “The Cybersecurity Act of 2012,” introduced by Senators Lieberman (I-Conn.) and Collins (R-Maine). To date, no hearings have been announced relative to the cyberlegislation, and CACI will continue to monitor the activity in both Congressional chambers...
Congressional Redistricting: What Were the Colorado Supreme Court Justices Thinking?
In the spirit of this election year, CACI wanted to update its members regarding the recent decision by the Colorado Supreme Court dealing with the redistricting Congressional district lines. The Supreme Court recently posted its decision and rationale that upheld the lower court’s right in selecting a map designed to increase the competitiveness of many districts. Republicans argued against the new district lines and were favored preserving the status quo. The Supreme Court stated that competitive districts can ensure lawmakers work harder since their districts are not necessarily considered “safe.”
For more information on this story, including a copy of the decision, read “Court explains Colorado redistricting decision,” The Associated Press, The Denver Post, February 27th.
Ball Corporation Receives High Rating Among World’s Most Admired Companies from Fortune Magazine
The Ball Corporation, which is a CACI Mission Trustees, has been named third in its industry, packaging/containers, by Fortune magazine, in its ranking of world’s most admired companies.
Fortune calls the rankings a “report card on corporate reputations,” which is based on a survey or peers within a particular industry.
Other CACI members also scored highly. For example, in the listing of the top 50 companies most admired overall, the following CACI members are listed in terms of their rank:
Here are the CACI members (note that the parent corporation may be listed) that scored first within their respective industry (Fortune organized the business world into 61 industries):
Please see the below March schedule of CACI’s policy-council meetings in which members discuss important state and federal policy issues. Councils often feature key state governmental officials. CACI encourages the attendance and participation of its members at these exclusive meetings.
· March 15, HealthCare Council Guest Speaker: Lorez Meinhold, Senior Policy Advisor, Office of the Governor. Sponsored by: Johnson & Johnson · March 20, Governmental Affairs Council Sponsored by: CenturyLink · March 28, Labor & Employment Council Sponsored by: AAA of Colorado
Visit the CACI Calendar for the full schedule of CACI council meetings during the 2012 legislative session. |
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