A bill that could strip governmental immunity from any Colorado entity with the power of law turned into an unprecedented procedural fight in the House Judiciary Committee on Thursday.
After more than five hours of testimony, including back-and-forth between House Democrats and Republicans over the sponsor's efforts to kill his own bill, the committee voted down House Bill 1287 on a 5-4 vote. Committee chair Rep. Mike Weissman, D-Aurora, and Rep. Dylan Roberts, D-Eagle, voted with Republicans, with Weissman casting the last, and deciding vote on the measure, a vote he said he would cast "with utmost distaste."
House Bill 1287, also known as the Colorado Rights Act, was sponsored by Rep. Matt Soper, R-Delta, and would allow anyone to file a civil suit against any Colorado government, and against public employees unless indemnified by their employer. Opponents feared the bill would open the floodgates to lawsuits.
That Soper opposed his own bill is important, and led to an hour-long out-of-committee argument between House Democrats and Republicans, including the Speaker of the House and lawmakers who ran for the rule books, over a motion from Soper to “postpone indefinitely,” or kill, the bill.
Soper is known for his efforts to work with Democrats, including judiciary committee members. Out of the 27 bills he has sponsored in the House in the last two years, 10 were with fellow Democratic judiciary committee members. And only three out of the 27 lacked Democratic co-sponsors.
The motion was quickly seconded by Rep. Terri Carver, R-Colorado Springs. But the judiciary committee chair, Rep. Mike Weissman, D-Aurora, refused to allow a vote on the motion, stating that House rules require him to “restate the motion” before it is voted on, and he refused to do so.
It’s unprecedented for a committee chair to deny a request from a bill sponsor to kill his or her own bill. It meant that Soper was stuck with the bill, which carried a $3 million fiscal note from the Attorney General’s office just for legal costs for state agencies alone, including the Department of Corrections, which is frequently sued by inmates.
Rep. Leslie Herod, D-Denver, acknowledged Democrats had the votes to kill the motion, but told Colorado Politics that the issue is over whether the chair has to acknowledge the motion. The real question — and focus of that argument — was about the chair’s authority and “respect of the members to allow that authority,” Herod explained.
Witnesses have shown up on both sides of the issue and “we should allow them to testify,” she said. She also said that Soper was aware before Thursday’s hearing that his request to kill the bill would not be acted on.
Sources told Colorado Politics that Soper is being threatened with a primary over HB 1287, but Soper said “I prefer not to answer that question” when asked about it by Colorado Politics.
Those in support of the bill testified for more than three hours; only three people testified against it.
HB 1287 prohibits governments from using "qualified immunity" as a defense against lawsuits. Alan Chen, a constitutional law professor at the University of Denver, explained that qualified immunity is a doctrine invented by the U.S. Supreme Court. It provides public officials with a defense in civil rights cases when the official's conduct did not violate "clearly established constitutional rights that a reasonable official would have known about. Unlike ordinary citizens who are expected to know the law," Chen said. "public officials are permitted to escape liability when they are reasonably mistaken about whether their conduct violates the Constitution." The defense is extremely unfair to plaintiffs, even when courts acknowledge a plaintiff's constitutional rights have been violated, he said.
Chen said qualified immunity has allowed "egregious incidents of Constitutional rights violations to go unremedied," and blocked "our most disenfranchised citizens from their day in court."
Jamie Ray of Aurora's Second Chance Center, which assists people coming out of incarceration, said she hears complaints about civil rights abuses from people who have been recently released. They come to her asking for help, but leave feeling defeated because there aren't a lot of remedies for them, she said.
Witnesses also cited police actions, including an incident where a police officer, attempting to shoot a dog, instead shot a child and was granted qualified immunity by the courts.
Attorney Erica Grossman spoke about 25-year-old Jimma Reat, a Sudanese immigrant who was shot to death in 2012 after a Denver 911 operator told him and his brother to return to the scene of an assault in Denver to file a police report. Because of qualified immunity, the Reats' lawsuit was eventually dismissed by the U.S. Supreme Court. Reat's brother also testified. "He left a third-world war-torn country" to find a new life in the United States, he said.
Testifying against, representatives of the Colorado Municipal League and Colorado Counties, Inc. Commissioner Julie Westendorff of La Plata County told the committee that the bill would create liability for local governments, such as with the recently-enacted "red flag" law and Senate Bill 19-181, the oil and gas regulation reform law. David Broadwell of CML pointed out that the state's governmental immunity act has caps on damages. HB 1287 has no caps, he said.
Soper, in renewing his motion to the committee to kill his bill, said he runs bills he believes in but didn't want to rush to an outcome when it isn't ready. This won't go away, he said.