Senate bills needlessly use litigation as enforcement weapon

Tuesday, April 11, 2017

At Colorado Civil Justice League, we try to keep a consistent focus on unnecessary litigation. That's why you usually won't see us weigh in on bills unless there's a litigation angle.

After all, litigation should be a last resort!

However, two bills in the Colorado Senate needlessly turn to private, personal injury litigation as an enforcement mechanism to advance other policy objectives. The only time private litigation is the proper enforcement tool is when fundamental freedoms are at stake and other avenues of redress are insufficient or unavailable - as when First Amendment rights to freedom of speech or freedom of religion or freedom of association are being abridged by government.

Even then, the answer usually isn't to sue for monetary damages; it's to sue to compel government to honor your constitutional freedoms.

Senate Bill 281 (by Sen. Vicki Marble, R-Fort Collins, and Sen. Tim Neville, R-Littleton) aims to punish local governments that fail to enforce federal immigration law - aka "sanctuary cities."

Senate Bill 284 (by Sen. Kevin Lundberg, R-Berthoud, and Sen. Marble) would require that health care providers present women who are considering an abortion with certain information about their pregnancies and health care options.

Both of those issues are squarely outside CCJL's policy purview - unless the bills use private lawsuits as an enforcement mechanism. That's why CCJL opposes both bills, so long as the personal injury lawsuit provisions remain.

Under SB 281, if a crime is committed by someone determined to be an illegal alien, crime victims would be allowed to sue the local jurisdiction for damages. Ironically, crime victims cannot sue state or local governments for criminal acts committed by legal residents. That is, you cannot sue the police department for failure to prevent a crime.

It's doubtful that a crime victim could prove all of the elements necessary to successfully bring such a lawsuit against a "sanctuary jurisdiction." So, the lawsuit provisions may be an empty threat.

SB 284 includes a "kitchen sink" provision that allows someone who suffers a "loss or injury" due to an abortion provider's failure to provide required information to sue for "damages, punitive damages, treble damages, and such equitable remedies as the court may deem appropriate." Translation: sue for everything your lawyer can dream up!

Government's job is to see that laws are followed, so lawmakers should enforce the law through state agencies, not by unleashing an army of personal injury lawyers to do their bidding.
For more background, read CCJL's issue papers on the perils of enforcement through private litigation or about the rational basis for limits on governmental liability.



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