Colorado Initiative 73 (2008)

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The Liability for Criminal Conduct by Business Initiative, or Initiative 73, would have made business executives criminally responsible for violations of law by their companies and would have allowed any Colorado resident to sue the executives under such circumstances. Proceeds from successful suits would go to the state, but individuals filing successful suits would be able to recover their legal costs.

The measure was a citizen-initiated state statute.

The official ballot title for the initiative read:

An amendment to the Colorado Revised Statutes concerning liability for criminal conduct by business entities, and, in connection therewith, extending the criminal liability of a business entity to its executive officials for the entity’s failure to perform a specific duty imposed by law; conditioning an executive official's liability upon his or her knowledge of the duty imposed by law and of the business entity’s failure to perform such duty; allowing a Colorado resident to bring an action for civil damages against a business entity or executive official for such criminal conduct; allowing an award of damages in the civil action to the governmental entity that imposed the specific duty on the business entity; permitting an individual who brings a successful civil action to be awarded attorney fees and costs; and allowing an executive official who discloses to the attorney general all facts known to the official concerning a business's criminal conduct to use that disclosure as an affirmative defense to criminal or civil charges.

Details of the initiative

The proposed initiative would have:

  • Provided criminal liability for an executive official for failure to discharge a specific duty imposed on the business entity by law when the executive official knew or should have known of the specific duty to be performed.
  • Recognized a valid defense to certain criminal and civil charges if the executive official, prior to being charged, reports all relevant known facts concerning the conduct of the business entity to the attorney general.
  • Allowd any Colorado resident to bring a civil cause of action on behalf of the state against a business entity or executive official for certain conduct.
  • Awarded any damages resulting from the civil action to the governmental entity that imposed by law the duty to be performed by the business entity, and to make those moneys exempt from all revenue and spending limitations provided by law.
  • Permitted any Colorado resident who is successful in a civil action to recover reasonable attorney fees and costs.

Supporters

Leading the charge for this measure was Protect Colorado’s Future, a coalition of advocacy groups.

Protect Colorado's Future had raised more than $1.5 million by the beginning of May 2008 to support its ballot measures and to oppose the Right to Work Initiative. The biggest single contribution, $500,000, came from the Service Employees International Union. A Teamsters local contributed $250,000.[1]

A spokesman for the effort is Lew Ellingson, a former employee at Qwest Communications International—a company hit hard by an insider trading scandal. The plight of Qwest, based in Denver, was a motivation for the proposal, according to Jess Knox, executive director of Protect Colorado’s Future.

Ellington said the proposal would assign top business officers unprecedented individual accountability. "If nothing else, these folks in charge of the corporations and companies will think twice about cutting corners to make themselves look more profitable than they really are," he said.

"I don’t know who can oppose this. This is common sense," Ellington said. "We need businesses to survive, but we don't need criminals running them."[2]

Mark Grueskin, an attorney for Protect Colorado's Future, discounts arguments that the measure will lead to frivolous lawsuits, noting that legal fees are only recoverable in successful suits.

"There is an inherent disincentive to use this as a means for a gadfly to act as a corporate obstructionist," he said. "I would be surprised if there would be many responsible companies that would have a problems with this."[2]

Protect Colorado's Future also offered three other slightly different versions of the proposal, in Initiative 57, Initiative 74, and Initiative 75.

Opponents

The initiative brought strong opposition in the business community. Joe Blake, president and chief executive of the Denver Metro Chamber of Commerce, feared that the courts may be overwhelmed with frivolous lawsuits, which could bankrupt small and midsized companies and make it more difficult for legitimate lawsuits to succeed.[2]

"We're very concerned that any number of people could crowd the docket and frustrate the court system with suits that are perhaps well-intentioned but highly frivolous," Blake said. "We're going to have chaos out here."[2]

The Chamber of Commerce filed a lawsuit April 2, 2008, to challenge the initiative, according to Doug Friednash, a lawyer for the chamber. He said the language could mislead voters into thinking they were supporting a measure that simply cracked down on crooked executives, as opposed to one that left business owners and other employees open to lawsuits.[2]

The Colorado Association of Commerce and Industry also came out in opposition to the measure. In explaining their opposition to this measure and five others the group opposed, CACI warned that "the political balance in the state is in danger of being tipped in favor of unions, which will be detrimental to the state's economic future."[3]

The Denver Metro Chamber of Commerce launched a group called Coloradans for Responsible Reform, which raised money from business interests to oppose this initiative as well as numerous other initiatives that they see as anti-business.[4]

The National Federation of Independent Business of Colorado announced May 1, 2008, that it has joined Coloradans for Responsible Reform in the effort.[4]

The board of the Colorado Women's Chamber of Commerce voted unanimously July 7, 2008, to oppose this measure—as well as several other ballot initiatives backed by organized labor (Initiatives 74, 75, 76, and 92). Donna Evans, CEO of the chamber, said the initiatives, if passed, "would damage business, especially small- and medium-sized business."[5]

Status

The initiative did not make the ballot.

The measure survived a challenge from the Denver Metro Chamber of Commerce, which appealed the language of the initiative before the Title Board, arguing that the initiatives did not constitute single subjects and would hurt Colorado businesses and trigger baseless lawsuits.[6] The Title Board approved some minor rewording of the ballot language but refused to invalidate the proposal.

The Denver Metro Chamber of Commerce has since appealed the Title Board's ruling to the state Supreme Court. "We redrafted them to take as many of their arguments out of play as possible," said Mark Grueskin, the attorney working for Protect Colorado's Future. But the Chamber was not satisfied, continuing to call the titles "misleading and confusing."[7]

See also

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References