The House Judiciary Committee on Tuesday advanced a pair of measures designed to give greater access to court opinions and clarify the types of relief that class action lawsuits may pursue under the state’s consumer protection law.

House Bill 1091, approved with no dissenting votes, would require the judicial branch to publish online, in a searchable format, all past opinions of the Colorado Supreme Court and Court of Appeals for free by March 2024. The bill’s sponsors noted that while legal subscription services may have the content available for lawyers, that is not the same as providing public access.

“We as attorneys pay that as a cost of doing business. The general public should not have to,” said Rep. Mike Weissman, D-Aurora.

“To my mind, access to the laws of this state is a critical part of having a fair and equitable justice system,” lawyer Thomas Neville testified to the committee. “The notion of secret law is anathema to our beliefs and our ideals as a nation.”

A representative from the state Judicial Department also backed the measure.

Notably, HB 1091 exempts from online posting those decisions of the Court of Appeals that are designated “not published.” The bulk of cases from the state’s second-highest court are decided in unpublished opinions, which are not intended to set a binding precedent on lower courts. The appellate court opts to publish opinions as precedent when there is a new rule, an issue of public interest or a resolution to conflicting legal interpretations.

The sponsors, Weissman and Rep. Matt Soper, R-Delta, did not immediately answer why unpublished opinions were excluded. Critics of unpublished opinions believe the public should be able to access judges’ reasoning in cases and that judges should be accountable for all decisions, not only precedent-setting ones.

Gilbert M. Román, chief judge of the Court of Appeals, told Colorado Politics last year that the appellate judges were aware of the controversy around publication of opinions. Although the court has not yet decided to do away with unpublished opinions, “someday they’ll just be accessible,” he added.

Criminal defense attorney Ann Roan indicated she supports any effort to make decisions widely-available at no cost.

“This bill will give the public easy access to the work appellate judges and justices do, and that’s as it should be, both because they are public officials and because their decisions have impact far beyond the parties involved in a particular case,” she said. “I do wish that unpublished appellate opinions would have been included in the bill, especially given the enormous number of appellate cases that are unpublished.”

The Judiciary Committee also advanced along party lines House Bill 1071, which would establish that people who successfully bring class action lawsuits under the Colorado Consumer Protection Act may recover attorney fees and compensation for their loss, known as actual damages. The committee’s seven Democrats voted in favor and the four Republican members voted against the bill.

“You’re probably going to hear opponents say the floodgates will open. That is a nonstarter,” argued Rep. Steven Woodrow, D-Denver, who sponsored the measure. “If you lose a case on a motion to dismiss, you owe attorney’s fees to the other side.”

Class action lawsuits are a mechanism to resolve claims when it would otherwise be unmanageable to litigate separate cases involving similarly-affected plaintiffs.

Woodrow explained the legislation was a response to a 2012 federal court ruling involving plaintiffs suing a supermarket for its allegedly deceptive marketing practices. U.S. District Court Judge Marcia S. Krieger determined that the law did not provide a way for members of a class to recover actual damages. She also suggested that the General Assembly intended for enforcement to happen through the attorney general, rather than through class action lawsuits.

HB 1071 saw opposition in committee from representatives of the National Federation of Independent Business and the Colorado Automobile Dealers Association.

“The attorney general is the chief law enforcement officer in the state and is tasked with representing the public interest,” said Matthew Groves, vice president of legal, regulatory and compliance with CADA. “If we were to open up the market to competition and allow individuals with a profit-driven motive to compete with him, that would be a dangerous precedent.”

Woodrow pushed back on the notion that the attorney general should be the sole entity to pursue violators of consumer protections.

“Folks, if you favor market-based solutions and less government intervention, this bill is for you. The attorney general doesn’t always have the bandwidth, and consumer protection doesn’t hinge on who occupies a political office,” he said.