Colorado Law Blog

A divided Supreme Court last Thursday swept away decades of legislative efforts to restrict the role of corporations in election campaigns, ruling that severe restrictions on corporate spending are inconsistent with the First Amendment's protection of political speech. The court split 5-4 over the ruling, with its conservative members in the majority.

The decision does not address the restriction on direct contributions to candidates, and it upholds disclosure requirements for groups that mount advertising campaigns for and against candidates.

Justice O'Connor criticized the recent decision, Citizens United v. Federal Election Commission, only obliquely, reminding the audience that she had been among the authors of McConnell v. Federal Election Commission, the 2003 decision that was overruled in large part on Thursday. She predicted that "mutually-assured destruction is the most likely outcome."

She has become increasingly vocal in recent years about doing away with judicial elections. Most states elect at least some of their judges, contrasted to federal judges who are appointed. The American Bar Association has also actively opposed elections of judges. On July 30th at the 2009 ABA Annual Meeting, the Standing Committee on Judicial Independence held a Presidential Showcase program, Justice for Sale? Contributions to Judicial Elections in the Wake of the Supreme Court's Decision in Caperton v. Massey. In Caperton, for which the ABA filed an amicus curie brief, the U.S. Supreme Court ruled that the Constitution required the recusal of the West Virginia Supreme Court justice who was elected with the help of more than $3 million in contributions from a coal mining executive.

In Colorado, state judges are appointed, not elected. Under Colorado's original constitution, judges were elected by the people, but in 1966, voters approved a constitutional initiative calling for merit selection of judges. Under Colorado's merit selection system, judges are appointed by the governor from a list of nominees submitted by a judicial nominating commission, and judges stand for retention at least two years after their appointment. In 1988, the Colorado general assembly created judicial performance commissions throughout the state to provide voters with information about the performance of judicial retention candidates.

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Last Friday, a federal judge rejected a plea agreement for a former hospital technician and drug user who admitted that she exposed hundreds of patients in her care to hepatitis C. He suggested the recommended 20 yeas was not sufficient punishment.

Ms. Parker, 27, admitted to the police on videotape that while working at Rose Medical Center in Denver in 2008 and 2009, she stole pain-medication syringes from operating room trays, replacing them at times with needles she had already used to inject herself with heroin.

Seventeen Rose patients have so far been found to have a strain of hepatitis C linked through genetic sequencing to the strain in Ms. Parker's blood, according to the Colorado Department of Public Health and Environment. Hepatitis C affects liver function and can have lifelong consequences.

Judge Blackburn warned Ms. Parker in the brief hearing in Federal District Court, before a courtroom packed with former Rose patients and their families, that if she chose to continue with her guilty plea, the sentence could be stiffer.

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About 1.5 million Graco strollers sold at Wal-Mart, Target and other major retailers are being recalled after some children's fingertips were amputated by hinges on the products. The recall by Graco Children's Products Inc. includes certain model numbers of its Passage, Alano and Spree Strollers and Travel Systems. Graco received seven reports of children placing their fingers in a stroller's canopy hinge as the canopy was being opened or closed. Five children had their fingertips severed and two children received cuts on their fingertips.

The recall involves strollers made between October 2004 and February 2008. The model numbers and manufacture dates are on the lower inside portion of the rear frame, just above the rear wheels. The recalled strollers have been on the market for five years. But Graco said in a statement Wednesday it has moved quickly to provide a corrective measure and is working closely with the safety commission.

This is the second major recall in recent months of strollers that led to fingertip amputations and injuries. Last November, about a million Maclaren strollers were recalled after there were 12 reports of children's fingertips being amputated by a hinge mechanism.

The safety commission is now examining all strollers with the designs that have caused the fingertip amputations. For more information about the recalled strollers, consumers can visit http://www.cpsc.gov and http://www.gracobaby.com.

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Yesterday the nation's biggest health insurers acknowledged funding TV ads designed to kill the health-care overhaul measure, after a published report said the spots were paid for in secret to avoid a public-relations storm. The trade group America's Health Insurance Plans said it put up funds on the behalf of its members. AHIP represents the nation's largest insurers, including Aetna Inc. AHIP acknowledged paying for the ads after a story appeared in the National Journal's online editions late Tuesday.

AHIP started funding the ads last summer as the industry came under fire from lawmakers and the Obama administration over high profit growth and abuses. But AHIP did not want to fund the effort directly, the Journal story said, for fear of running up against the same public relations problems that the industry encountered with its "Harry and Louise" ads that helped kill health-care reform under the Clinton administration.
AHIP did not fund the entire effort, as the U.S.Chamber of Commerce spent $70 million to $100 million on the ads.

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The 2010 Colorado legislative session opened today with the state budget expected to dominate the next four and a half months. The state has dealt with a nearly $2 billion shortfall over the last two budget years, and faces a deficit in the budget year that begins in July that could be more than $1.3 billion. The state has weathered the crisis largely through the use of one-time sources of money, such as cash funds and federal stimulus funds.

Lawmakers may start by voting to rescind $110 million that they had set aside for schools. Lawmakers agreed last year to include the money for schools in the budget--but to withhold it until more economic data was available.

Other strategies include a bill to combine state agencies and offer financial incentives to school districts to cut costs. The proposed bill would abolish the position of executive director of the Department of Local Affairs and give those responsibilities to the lieutenant governor, whose only real duty is overseeing Indian affairs.

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A Colorado car dealership has agreed to pay $1.5 million to settle a sex- and age-discrimination lawsuit. Arapahoe Motors, doing business as Ralph Schomp Automotive, will pay $1.505 million and "furnish other relief" to settle a suit against the company filed by the federal government on behalf of 10 former employees, the Equal Employment Opportunity Commission announced yesterday.

Ralph Schomp said in a written statement that it still denies all the allegations. In a statement, the dealership said the decision to settle is an effort to protect the company and employees from economic hardship, it also suggested that it would too expensive to fight the claims in court.

The "too expensive" argument is the old excuse used by businesses who know that they will probably lose at trial (meaning that the claims are not without merit) and wish to cut their losses - pay the damages a jury would probably award without the defense litigation costs. Since Colorado has a "loser pays" system for litigation costs, if a business really is convinced it has done no wrong, then why settle?

The five women represented by the EEOC were "subjected to sex discrimination and a sexually hostile work environment while employed by the car dealership," the EEOC said in a news release. The EEOC also alleged that five "older" employees were fired because of their ages and replaced with younger, less-experienced workers.

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Reminiscent of his earlier role in "Money Pit," Tom Hanks is experiencing one of the most frustrating situations many home owners face - remodeling with an uncooperative contractor. The Idaho Supreme Court ruled last year that a second arbitration was allowable under the contract.The Idaho Supreme Court this week has refused to reconsider its ruling in a lawsuit pitting an Idaho contractor against Tom Hanks and Rita Wilson.The high court said last week its October ruling in favor of the acting and producing couple will stand.

In Colorado, the law regarding construction defect changed effective April 2003. The Act, called the Construction Defect Action Reform Act, has implications for new construction and remodeling.

The Act includes (1) a requirement for notice to members of homeowners' associations before construction defect litigation is served on a defendant; (2) a restriction on claims for technical building code violations in residential construction; (3) a requirement for a list of construction defects to be provided by a claimant within 60 days after commencing a lawsuit or arbitration for construction defects; and (4) a change to the deadline for any claim by one defendant to obtain reimbursement from another person who may be liable. The latter provision requires a lawsuit for reimbursement to be brought within 90 days after settlement or final judgment in the underlying dispute. It may be considered the most significant feature of the Act.

If you employ someone to perform renovations or repairs that you believe are defective, you need to follow the notice process before suing the contractor. If you had your home inspected prior to purchasing it and later discovered a defect, you need to follow the notice process before suing an inspector. Anyone performing or supervising any renovations, repairs or inspections falls under the new law.

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Children who aren't vaccinated against chickenpox are nine times more likely to get the disease, according to the first study that gauges the risk of refusing the 15-year-old immunization. The study led by Kaiser Permanente Colorado physicians found that about one in 10 unvaccinated children got chickenpox, compared with one in 100 vaccinated children. And the small percentage of vaccinated children who develop the illness usually has a much milder form, researchers said.

The reason to get vaccinated isn't just personal health but also the protection of the community, including children who have compromised immune systems because of diseases such as HIV or leukemia. Still, vaccine "watch-dog" groups, including the National Vaccine Information Center, argue for more studies that identify who is at risk for having adverse reactions to vaccines. The chickenpox vaccine is also available for adults, who tend to have more serious complications with the disease.

The Kaiser study included 133 Colorado children who had chickenpox between 1998 and 2008. For comparison, each child who had chickenpox was matched to four randomly selected children of the same age and sex who never had chickenpox.
Among the 133 kids who had chickenpox, 5 percent had parents who refused the vaccine. Among the 500 children who never got the illness, 0.6 percent were not vaccinated.

The study released Monday is published in this month's issue of Archives of Pediatrics & Adolescent Medicine. A 2009 Kaiser study found that children whose parents refuse to have them immunized against whooping cough are 23 times more likely to get that illness.

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