CHEYENNE — Senators on Saturday pushed through a controversial statute to give business owners immunity from lawsuits over COVID-19 infections. They did so by hitching it to must-pass legislation to aid Wyoming residents and businesses hit by the virus’s devastating economic impacts.
Senators argued business owners need the protections immediately to reopen without fear of lawsuits — a confidence proponents said is key to economic recovery. Though the final wording was more limited than a sweeping bill senators initially advanced, many House members said the wording still concerned them, and the process concerned them even more.
House Speaker Pro Tempor Albert Sommers (R-Pinedale) called the process — which did not include public comment — a “black mark” on the Legislature. The maneuver was more troubling, he and others said, because the legislation addressed Wyoming residents’ right to access the courts.
“It really concerns me that we’re willing to take people’s constitutional rights away from them without any public comment,” Sommers said.
The initial bill would have granted sweeping immunities against civil lawsuits brought by an individual alleging they contracted COVID-19 on a business property. Only business owners who intentionally exposed people to the virus could be held liable. The ultimate language that passed was narrower, granting business owners immunity provided they followed state, county and municipal health orders and acted “in good faith.”
But some lawyers in the House argued it still denied people their right to legal redress.
“This whole COVID-19 issue has squeezed our rights,” House Minerals, Business and Economic Development Chairman Mike Greear (R-Worland) said when he spoke against the bill, citing public health orders against gatherings and closing certain businesses.
“What I’m afraid with this immunity provision,” he said, “is that these coils of constriction continue to squeeze the constitutional breath out of me and the constitutional breath out of my constituents.”
Despite the reservations, the House passed the measure 38-20. The Senate had left them little choice, Sommers and like-minded representatives said. Sommers voted for the bill despite his strong language against the immunity provision, as did other representatives who expressed distaste.
Over the course of debate, opponents argued that the fears of business owners were misguided and based on an ignorance of current statute that already protects them from frivolous lawsuits during a public health crisis. They also argued that because the Legislature’s Joint Judiciary Committee had been assigned to consider the topic and take public comment, rushing to pass it was unwise. The Legislature is likely to meet again in late June and could pass more vetted legislation to address owners’ fears then.
But proponents argued business owners were raising an “outcry” and needed assurances from lawmakers now.
Over Senate President Drew Perkins’ (R-Casper) objection, senators pushing the measure inserted it into one of four bills distributing federal CARES Act funding and creating new programs to respond to the pandemic’s devastating economic impact. Had it rejected the immunity measure, the House would have risked programs to stem evictions, extend workers compensation to workers sick with COVID-19 and protect employers from paying steeper workers compensation rates as a result.
Gov. Mark Gordon and lawmakers deemed those measures critical as the state reels from increasing unemployment and prepares to restart its economy.
The Legislature ultimately passed a delicate compromise crafted by Senate Judiciary Committee Chairwoman Tara Nethercott (R-Cheyenne). But the process left House members rankled, and with the state’s lawyers not given an opportunity to comment publicly, it’s unclear what impact the policy will have.
A spokesperson for the Wyoming Trial Lawyers Association invoked concerns about poor incentives for businesses. “It should be pointed out that immunity doesn’t just shield the worst actors,” the organization’s president Elizabeth Lance wrote to WyoFile on Monday. “It also punishes the best, by giving a competitive advantage to the businesses that decide to cut corners at the expense of worker and consumer health and safety,”
Before the session, some transparency advocates worried lawmakers would use the public health emergency to ram legislation through without giving their constituents a chance to weigh in.
Leading solons acknowledged the process was not perfect, but cited an imminent need to distribute the federal dollars as people and businesses struggle.
“Give us the benefit of the doubt and let’s get this [money] out to the people of our community,” Speaker of the House Steve Harshman (R-Casper) told WyoFile last week.
Chris Merrill, the executive director of Equality State Policy Center, which advocates for transparency and good governance, said on Sunday that the speaker kept to his word.
Harshman “tried to do everything he could to make sure the special session played out the way that the management council said it would play out,” Merrill said. The Senate, he said, “threw a curveball.”
Usual process ‘suspended’
Legislative leadership laid out rules for considering four bills to distribute CARES act funding. Mirror bills were to advance simultaneously through the House and Senate, receiving votes and amendments, and then committees representing each body would meet to hash out the differences.
The Legislature entered the session with four bills, each of which had received public comment as it was developed in committee. However, the day before the session began, Sen. Dave Kinskey (R-Sheridan) introduced Senate File 1005 – Coronavirus immunity provisions on the Senate side, while Rep. Richard Tass (R-Buffalo) brought a close copy in the House.
Senate opponents, including Nethercott, argued there was no time for a committee to take public comment on the idea. Businesses could endure the six weeks required to conduct a more transparent process before the Legislature reconvenes, she and others argued.
Proponents disagreed. “In a state of emergency, all the usual rules and usual processes are suspended,” Kinskey said. “They’re out the window.”
The Senate accepted Kinskey’s bill with a 20-10 vote on Friday. It passed through three more votes in the Senate, receiving 23 votes on its third and final reading. In the House, Harshman initially did not bring Tass’s bill up for a vote. Later, the House voted 40-20 not to belatedly add the measure to its list of bills under consideration. Though the Senate bill passed, the House appeared unlikely to consider it.
At close to 11 p.m. on Friday, Sen. Liisa Anselmi-Dalton (D-Rock Springs), a hotel owner passionate about the measure, brought an adjusted version as an amendment to Senate File 1002 – Emergency powers-COVID-19. That bill, one of the original four, contained aid for renters, landlords, workers and business owners.
Opponents challenged the amendment, questioning whether it followed a section of the Wyoming Constitution governing to what extent a bill can be altered from its original purpose. Perkins, the senate president, ruled the amendment should not be included.
The Senate Rules committee met and voted to overrule Perkins. Three cosponsors of Kinskey’s bill were on the five-person committee.
During normal sessions, rules committees meet on the floor of the House and Senate chambers and are not open to the public. For the livestreamed special session, the LSO set up a separate virtual meeting that was not publicly broadcasted.
In the House, Rep. Clark Stith (R-Rock Springs) brought a mirror amendment. The House Rules Committee found it was not germane.
Each chamber passed its version of SF-1002 through three votes — the Senate’s with the immunity amendment, the House’s without — sending it to a conference committee on Saturday for negotiations. Both sides came into the meeting with hard lines. The Senate wanted the measure because senators had heard a “huge outcry” from business owners in their district, Senate Vice President Ogden Driskill (R-Devil’s Tower) said. He accused the House of being unwilling to negotiate, and said it was a “good way to kill the bill.”
Ansemi-Dalton spoke for business owners all over the state, she said, as she described lengthy measures her employees were going through to keep the hotel safe.
“If I have that lawsuit tomorrow you’re not protecting me,” the Rock Springs Democrat said. “I’m doing better than most businesses … I don’t think I should be subject to a lawsuit as a business owner.”
House members argued the Senate was trying to bend them over a barrel. “You’ve thrown down the gauntlet,” House Majority Floor Leader Eric Barlow (R-Gillette) said.
Nethercott, the senate judiciary chairwoman and a lawyer, sought to intervene. Existing laws already grant business owners protections, she said.
“During a public health emergency,” existing statute reads, “any health care provider or other person who in good faith follows the instructions of the state health officer in responding to the public health emergency is immune from any liability arising from complying with those instructions.”
The committee ended its first meeting. When it reconvened later in the afternoon, Nethercott offered an amendment that tossed the Senate’s language and tweaked existing statute. Her amendment specified that businesses are protected, emphasized immunity for those “acting in good faith” and included county and local health orders.
“The business community is incredibly nervous at a time that it is so important for them to feel confident in opening,” Nethercott said. “Nobody will ever feel completely protected.”
Though the negotiating committee accepted Nethercott’s change, the full House was more reluctant. Lawyers in that chamber questioned even the much more limited language. “I have extreme heartburn about where this bill is at,” said Rep. Jared Olsen (R), a Cheyenne attorney. “My phone’s been blowing up all day on this,” from concerned lawyers, he said. “There’s a huge lack of public input on such a major, major public policy that can have huge ramifications and consequences beyond the pandemic itself.”
Debate raged and sentiment appeared to swing first one way, then the other on the virtual debate floor.
Rep. Charles Pelkey (D-Laramie) said the debate changed his mind. “I’m not going to hold my nose, I’m going to breathe freely when I vote [no] on this bill,” he said. A no vote in the House would have sent negotiators back to the table, at a late hour and against a Senate that seemed dead-set on the issue.
Finally, approaching two hours of debate, the House neared a vote. Barlow, the House Majority Floor Leader, spoke last. “This is probably the most robust debate I’ve had with a computer screen in a long time,” he joked. He then proceeded to list off everything at stake should SF-1002 fail. The state is hurting, he argued, and Wyoming workers and employers need the rest of the bill.
Barlow described a laid off coal miner from his district who had been unable to secure unemployment insurance. “Those are the kinds of folks I’m hearing from,” he told his colleagues. The other measures in the bill aimed to keep workers in Wyoming, “keep businesses open and keep people in their homes so that they can go back to work,” he said.
Later in the evening, while waiting for the last bills to be signed, senators chatted over the livestream. Several had watched the House debate. “It was going south for a while,” Senate Majority Floor Leader Dan Dockstader (R-Afton) said. “Rep. Barlow brought it back.”
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