The following guest editorial by NFIB/Colorado State Director Tony Gagliardi was offered to the media as free content for their publications or websites or as background material for any related stories. [Editors: An earlier version of this story mistakenly said NFIB v. Williams had been settled. It has not. We apologize for the error]
Two down and two to go.
It was probably just coincidental, but in the past two years, Colorado has become a focal point of legal decisions on business issues with national implications.
Two of the four cases giving our state this – from businesses’ perspective – unwanted attention have been settled, with the biggest remaining to be decided.
Slip and Fall
Earlier this year, small businesses everywhere breathed a collective sigh of relief when the Colorado Supreme Court ruled in Jordan v. Panorama Orthopedics & Spine Center PC that the clinic was not responsible for the condition of the sidewalk outside its place of business where the plaintiff had injured herself, because it was not the landowner.
Had this decision gone the other way, Colorado would have become a quick-buck haven for hyper-imaginative lawyers and litigants.
Marijuana in the Workplace
In another decision shortly after Jordan v. Panorama, the state Supreme Court in Coats v. Dish Network again sided with businesses in upholding the company’s right to maintain a drug-free workplace.
According to the court’s decision, “Between 2007 and 2010, [Brandon] Coats worked for respondent Dish as a telephone customer service representative. In May 2010, Coats tested positive for tetrahydrocannabinol (“THC”), a component of medical marijuana, during a random drug test. Coats informed Dish that he was a registered medical marijuana patient and planned to continue using medical marijuana. On June 7, 2010, Dish fired Coats for violating the company’s drug policy. Coats then filed a wrongful termination claim against Dish under Colorado’s Lawful Activities Statute, which generally prohibits employers from discharging an employee based on his engagement in ‘lawful activities’ off the premises of the employer during nonworking hours. Coats contended that Dish violated the statute by terminating him based on his outside-of-work medical marijuana use, which he argued was ‘lawful’ under the Medical Marijuana Amendment and its implementing legislation. Dish filed a motion to dismiss, arguing that Coats’s medical marijuana use was not ‘lawful’ for purposes of the statute under either federal or state law.”
It was clearly stated when Colorado approved the use of marijuana for medical purposes that employers were under no obligation to change their current policy on drug use, and the court agreed, explaining: “The term ‘lawful’ as it is used in [Colorado’s Lawful Activities Statute] is not restricted in any way, and we decline to engraft a state law limitation onto the term. Therefore, an activity such as medical marijuana use that is unlawful under federal law is not a ‘lawful’ activity under [our] Lawful Activities Statute.”
Follow the Money
In the case of NFIB v. Williams, the National Federation of Independent Business is challenging the legality of the Secretary of State’s practice of charging excessive “fees” for the filing of routine business documents, then using those fees to fund unrelated state operations. Under Colorado law, if a fee is used to support general government operations, it is in reality a tax, and the law requires that all tax increases be approved by a public vote. In Colorado, the Secretary of State collects over $20 million in “fees” from businesses every year, but only uses a fraction of that to regulate those businesses. The majority goes to unrelated state operations. NFIB argues that this improperly forces small businesses to carry the burden of financing state activities and can’t be imposed unless approved by voters, which was not done. If successful, businesses could see a substantial reduction in the cost of their periodic filings with the state.
And What About TABOR?
The U.S. Supreme Court sent back to the Tenth Circuit Federal Court of Appeal the task of deciding Kerr v. Hickenlooper, a lawsuit calling into question TABOR’s constitutionality. The eventual decision is likely to reverberate throughout the nation, because it will answer a simple question: Who is in charge of the American republic?
In 1992 Coloradans voted to amend their state constitution in order to impose restraints on their government’s power to tax and spend. The Colorado Taxpayer Bill of Rights (TABOR) has since given citizens the final say on new or increased taxes and spending.
Opponents of TABOR, however, believe it makes it more difficult for government to pursue costly new programs, or to increase funding for existing programs, an argument they lost in the Colorado Supreme Court.
Safe to say, this will be the biggest decision any court will rule this year relating to a state.
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