Three down, one to go: Legal rulings bring unwanted attention to Colorado

Tony Gagliardi
Tony Gagliardi

Three down and one 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. Three of the four cases giving our state this — from business 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 the clinic wasn’t 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 could 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’ 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, no court decision was needed. The state simply threw up its hands. For too long, charged the National Federation of Independent Business, the fees paid by small business owners have been used for purposes well beyond regulating those businesses that pay the fees. Under this practice, fees could be used to fund any government function, whether it be elections, transportation or human services. So, then, the more than $20 million in business licensing fees collected by the state amount to unconstitutional tax under the Taxpayer Bill of Rights (TABOR). Colorado didn’t deny it, and Colorado didn’t fight it.

What About TABOR? The U.S. Supreme Court sent back to the 10th Circuit Federal Court of Appeals 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’s in charge of the republic?

In 1992, Coloradans voted to amend their state constitution to impose restraints on government 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 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 on this year relating to a state.