Office of Sen.

Mike Johnston
Colorado General Assembly | 200 E. Colfax Avenue | Denver, CO 80203 | 303.866.4864

FACT SHEET MEMORANDUM

SB 12-153 Sunshine in Litigation Act Sen. Morse Staff Name: Kelson Bohnet What the Bill Does: Lawsuits often focus or touch upon situations that could pose a possible danger to the public. Common examples include environmental hazards and defective products. However, lawsuits involving these situations usually come to a settlement agreement. Often, these settlements are tied to confidentiality agreements, which bar either side from discussing the suit in any way. Moreover, courts often seal judicial records pertaining to these lawsuits. Under current law, there is no prohibition on confidential settlements or sealed records in any case. SB 12-153 mandates that information constituting a public hazard not be protected by confidentiality agreements or sealing orders in Colorados state and federal courts. Under the bill, a public hazard is any device, instrument, or product that has injured a person or a persons property, and may foreseaably injure someone in the future. The bill creates the presumption that public hazards be available for public disclosure. Any contracts or settlement agreements to the contrary are automatically void. Moreover, citizens may intervene in court if they believe that an agreement is contrary to this law. To avoid disclosure of something constituting a public hazard, a party would have to present clear and convincing evidence to the court that meets several criteria (listed in Bill Provisions below). Colorado Context: In fiscal year 2011, approximately 125,600 civil lawsuits were filed in Colorados district courts.1 Just over 200,000 civil cases were filed in the states county courts.2 The Federal District Court for the District of Colorado saw 3,136 civil filings.3 The types of cases filed in these courts varied greatly. Because of confidential settlements and sealing orders, little or no information is available as to how many lawsuits may have touched upon topics that could constitute public hazards. National Context: Sunshine in litigation legislation has been a popular topic at the state level. Four states Florida, Virginia, Arkansas, and Washington have passed legislation substantially similar to SB 12-153. Other
1

COLO. STATE JUDICIARY, DISTRICT COURT CIVIL FILINGS BY TYPE, FY 2011 (2012), available at www.courts.state.co.us/ userfiles/file/Administration/Planning_and_Analysis/Annual_Statistical_Reports/2011/District%20Court/ Table16.pdf. 2 COLO. STATE JUDICIARY, CNTY. COURT CIVIL FILINGS BY TYPE, FY 2011 (2012), available at www.courts.state.co.us/ userfiles/file/Administration/Planning_and_Analysis/Annual_Statistical_Reports/2011/County%20Court/ Table29.pdf. 3 Felisa Cardona, U.S. District Court in Denver Rule Sends Most Civil Cases to Private Arbitration, DENVER POST (Dec. 30, 2011, 1:00 AM), http://www.denverpost.com/news/ci_19642899.

DRAFT 3/3/2012 11:33 AM

For a complete list of fact sheets, visit www.mikejohnston.org/in-the-legislature.

states may also have similar laws, but sources are unclear as to which or how many. Still others, such as Texas, have adopted court rules relating to the matter.4 At the federal level, senators and representatives have filed various versions of this legislation on a consistent basis since 1990; no version of the bill has been signed into law.5 The Seventh Circuit has adopted Operating Procedure Rule 10, which combines with case law to set a stringent standard on when courts in the circuit may issue protective orders.6 Bill Provisions: Defines public hazard for the purposes of the Act Creates a rebuttable presumption that public hazard information not be sealed through order or judgment Applies this presumption to all administrative, state, and federal courts in Colorado Specifies that this presumption can be overcome through a motion that provides clear and convincing in camera evidence that: o The contested information is not actually about a public hazard, or is not likely to lead to the discovery of evidence concerning a public hazard; o The information wouldnt be useful to the public in protecting themselves from the alleged hazard o The moving party has a substantial economic interest clearly outweighing any adverse effect that nondisclosure would have; o No less restrictive means other than nondisclosure will protect that economic interest. Declares that the rules of evidence and all other court rules apply to the aforementioned motion hearing Allows any person to file a non-injury complaint in the relevant court to challenge a motion for nondisclosure as described above Creates a cause of action so that any person may intervene regarding a settlement agreement and/or contract that he believes is contrary to the public hazard provisions of this law Voids agreements, contracts, or understandings that conceal public hazards Declares that settlement agreements may not be conditioned upon nondisclosure of public hazard information Clarifies that these disclosure requirements do not apply to the monetary amount of any settlements relating to a public hazard Declares the act to be severable in the event that any portion of the act is held invalid by a court Fiscal Impact: No fiscal note is available at this time.

FLA. SENATE JUD. COMM., REV. OF THE SUNSHINE IN LITIGATION ACT (2011), available at www.flsenate.gov/ PublishedContent/Session/2012/.../2012-227ju.pdf. 5 Id. 6 Andrew J. Schwaba, Do We Need a Sunshine in Litigation Act?, 76 WIS. LAWYER, no. 10 (2003), available at http:// www.wisbar.org/am/template.cfm?section=wisconsin_lawyer&template=/cm/contentdisplay.cfm&contentid= 48294.

DRAFT 3/3/2012 11:33 AM

For a complete list of fact sheets, visit www.mikejohnston.org/in-the-legislature.