On day one of the Wyoming Legislature’s special session to respond to the coronavirus pandemic, the Senate advanced a bill to grant business owners immunity from civil lawsuits brought by individuals who allege they contracted COVID-19 in the business.
The bill’s future is in doubt after the House rejected a similar measure.
If the bill becomes law by the session’s end, however, it will do so without lawmakers ever receiving public input, and the draft legislation only would have been visible to the public for three days.
Sen. Dave Kinskey (R-Sheridan) brought Senate File 1005, Coronavirus immunity provisions, which appeared on the Legislative Service Office website around noon Thursday, according to a spokesperson in that office. The special session began at 8 a.m. Friday.
Lawmakers met in a Capitol that was closed to the public with the exception of a handful of journalists. There appear to be around 30 lawmakers present in the building with the rest joining online.
Opponents argued the Legislature was considering a major policy without allowing its constituents to weigh in. Legislative leadership already assigned the topic to the Joint Judiciary Committee, committee chairwoman Sen. Tara Nethercott (R-Cheyenne) said. The committee could conduct a “transparent” process with public comment, she said, and present a bill at the next special session. Leading lawmakers have indicated that session will come at the end of June, six weeks from now.
Kinskey and other proponents argued business owners need the protections immediately as they begin to reopen.
“In a state of emergency, all the usual rules and usual processes are suspended,” Kinskey said. “They’re out the window.”
The Senate voted 20-10 to consider the bill. The Senate passed the bill through its first of three votes early Friday afternoon by a similar margin.
The House, however, rejected the measure, voting 40-20 not to consider it in that chamber. The Legislature is using special rules to advance identical versions of bills through both chambers on the same day. Normal rules see bills pass one chamber before being considered in the second.
The House could vote to consider the Senate’s bill tomorrow, according to the LSO. It would take a two-thirds vote in the House to do so, however. Based on the House’s first vote, success would require 10 lawmakers to change their positions.
No opportunity for public comment
Legislative leaders said the special session would focus on four bills — with mirror versions advancing in the House and the Senate simultaneously. The bills create programs for Gov. Mark Gordon to begin distributing $1.25 billion in federal aid to healthcare facilities, small businesses, landlords and renters, and others being hit hard by the virus or its economic impact.
Kinskey’s bill, and the House version of it, were the only additional bills entered for consideration.
Legislative committees considered the four principal bills in the weeks running up to the special session. Both the Management Council and the Joint Minerals, Business & Economic Development Committee took public comment on those bills, though some transparency advocates said comment was restricted by new electronic meeting formats and lawmakers’ accelerated process.
Kinskey’s late entry did not receive a committee hearing. The special session’s rules did not allow for public comment. Citizens were not aware of the legislation long enough to reach out to their legislators via email or text message, Senate opponents argued.
“If we were to pass something, I couldn’t point to any opportunity where [the public] was able to reach out to us as legislators,” Sen. Affie Ellis (R-Cheyenne) said.
But senators had been hearing from business owners who fear lawsuits because of COVID-19, several said.
To recover from the pandemic’s economic devastation, “restoring business confidence in reopening is just as vital as any distribution of those [CARES Act] funds,” Kinskey said.
The legislation would make property owners and lessees or property users immune from civil liability “for any action or omission that resulted in alleged exposure to or the contracting of coronavirus” on the property. Only a business owner who intentionally exposed people to the virus would be liable.
Many senators who own businesses said they have felt vulnerable to lawsuits regardless of the efforts taken to keep people safe. “I may be naked in terms of what I would have to do to defend against a particular lawsuit if it was filed against my company,” said Sen. Eli Bebout (R-Riverton) who owns an oilfield services company, a steakhouse and several other businesses.
Hotel owners who conduct extensive cleaning and provide sanitizing solutions for guests could still face lawsuits in the coming weeks, Sen. Liisa Anselmi-Dalton (D-Rock Springs), a hotel owner, said. Such business owners can’t afford to wait for the Legislature to involve the public, she said.
Another hotel and restaurant owner, Sen. Cale Case (R-Lander), had raised a number of concerns about the special session process, which he said is hurried even for the bills that have come through committee. Even as a business owner, he did not support rushing the bill through without public comment, he said.
“I’m trying to get people to come back to work, and they’re afraid to work,” he said. “I have great sympathy, but we cannot think about this in the next eight, 10 hours. It’s too big of a question.”
Several senators said they were also concerned about the hasty process, but the need to protect business owners outweighed the need for public input. “Having heard from the small businesses in my area, they’re concerned about liability and that might be a bigger, burning issue for me,” Sen. Wendy Schuler (R-Evanston) said.