A basic attribute of our country’s legal system is that legislatures make laws and courts interpret and apply laws. Every so often, however, a court will interpret and apply a law in a manner contrary to the wishes of the legislature. What happens then is the legislature changes the law, thereby overruling the court. Thus, legislatures stand in the dominant position.

A situation like this is now teed up at the current session of the Colorado General Assembly in the form of House Bill 24-1014. If this bill becomes law, it will overrule a part of a 1998 Colorado Supreme Court decision in the case of Hall v. Walters. At issue is a statute, the Colorado Consumer Protection Act, that’s been on the books since 1969. This law prohibits deceptive trade practices and punishes wrongdoers with treble damages.

The Hall v. Walters case was not your normal consumer versus merchant dispute. Rather, the Walters owned agricultural property in Las Animas County. Hall was selling lots near the Walters’ property and was falsely telling lot buyers they could use a road across the Walters’ property to reach their lots. The Walters installed a locked gate at the entrance to their property but Hall broke the lock. The Walters put up fences and Hall, or perhaps some of the lot buyers, tore them down. Finally, the Walters sued Hall, asserting several claims for relief, including a claim under the Consumer Protection Act.

The jury in the case sided with the Walters and awarded substantial damages. The trial court judge, pursuant to the Consumer Protection Act, then trebled the damages and Hall was off to the Colorado Court of Appeals. That court affirmed the trial court’s ruling, after which Hall was off to the Colorado Supreme Court. The Supreme Court affirmed the trial court and Court of Appeals rulings, but, in the process, added an additional requirement for a successful claim under the Consumer Protection Act — proof of public impact.

The most hotly contested issue in the Hall v. Walters case was whether someone who did not receive a false representation from the defendant, and was not even a consumer, could nonetheless sue under the act. After all, in this case, the lot buyers — and not the Walters —were the consumers and the recipients of the false representations about access to their property. The Supreme Court struggled with this issue, looked at how several other states had handled the matter, and finally decided, with two justices dissenting, that a person who was not a customer or potential customer of the party engaging in a deceptive trade practice could in fact sue under the act, provided the deceptive trade practice caused that person damage.

The Supreme Court opinion also said that someone bringing an action under the Consumer Protection Act, in order to recover, had to prove that the deceptive trade practice in question “significantly impacts the public as actual or potential consumers of the defendant’s goods, services or property.” This is the part of the Supreme Court’s decision House Bill 24-1014 would overrule. The sponsors of the bill, in the bill’s “legislative declaration,” state that a public impact requirement is “nowhere to be found” in the text of the Consumer Protection Act; Colorado is one of only seven states to have such a requirement; and the public impact requirement forces a party bringing a claim under the act to “prove circumstances far outside their own knowledge or control.”

If House Bill 24-1014 becomes law, the Consumer Protection Act will be amended to state that evidence a person has engaged in an unfair or deceptive trade practice “is sufficient to establish a significant impact to the public” and nothing else is needed. Plaintiffs (and their lawyers) will then have an easier path to a treble damages award under the act.

Jim Flynn is a business columnist. He is of counsel with the Colorado Springs firm Flynn & Wright LLC. He can be contacted at moneylaw@jtflynn.com.

Jim Flynn