Primary Election Today!

Today’s the day we Coloradans go to the polls ( at least those of us who don’t care much for that newfangled early voting) and decide who’s gonna appear on the ballot in November for a variety of state and federal offices. My fellow City and County of Broomfield residents can get all the necessary information here, including sample ballots and voting center locations.

Republicans in this neck of the woods have no contested races at all. We Democrats have just one, the three-way contest among Joan Fitz-Gerald, Jared Polis and Will Shafroth to become the Democratic nominee for U.S. Congressional District 2. The Democratic nominee for that office is the winner come November. No Republican has a chance in CD2.

The three candidates for the CD2 nomination are a veritable embarrassment of riches. I prefer Fitz-Gerald based on her experience as a legislator at the state level and her fervent hatred of all things Republican, but we really can’t go wrong with any of these people.

I suspect Jared Polis will win. He made a mint in internet commerce awhile back and has been spending a sizeable chunk of his personal fortune saturation-bombing the airwaves with teevee ads for the past several months. Neither of the other candidates has been able to get within hollering distance of keeping up.

Update: As predicted, Polis takes it. With 99% of precincts reporting:

Polis - 42%

Fitz-Gerald - 38%

Shafroth - 20%

Comprehensive election results from across the state are available here.

According to the Denver Post, Polis spent “at least $5.3 million” of his own money on the campaign. That, together with the approximately $1 million in contributions raised by each of the three candidates, made this the most expensive primary in the country.

Polis’ opponents in November are Republican Scott Starin and a couple of random hippies from the Green and Unity Parties. If Polis wins — and it would be the mother of all upsets if he didn’t — he’ll be Colorado’s first openly gay member of Congress.

So yes, you can buy an election in this state. However, you have to be a reasonably decent human being, unlike Pete Coors.

Manufactured Christian free speech lawsuit dismissed

Here we brought you the story of Erica Corder, one of fifteen valedictorians for the Class of 2006 at Lewis Palmer High School near Colorado Springs, Colorado. The school required that valedictorians have their graduation day speeches vetted by school officials in advance. Corder submitted a prepared speech to the school principal in advance of the ceremony and got approval. Trouble is, she gave a substantially different speech at the ceremony itself, waxing starry-eyed about the Lord Jesus Christ and how He could do wonderful things for those assembled as well. Erica got in a bit of trouble over that. Given the state of Establishment Clause jurisprudence, public schools understandably tend to be a little skittish about overt proselytizing at school events.

Erica filed suit in August 2007 in the U.S. District Court for the District of Colorado. The lawsuit was manufactured all the way. Corder’s father was a director of the uberfundamentalist, extreme right wing Christian political action group Focus on the Family. Although daddy denies any knowledge of what his daughter was planning, a more transparent lie is difficult to imagine. As if to emphasize the abject bullshittiness of the cover story, the Corders hired Bullshittin’ Mat Staver of the Christian right “Liberty Counsel” to pursue the case.

(I don’t have anything against manufactured lawsuits per se. I have little doubt that some of the biggest civil rights decisions of all time were dreamed up in a law firm’s conference room. What honks me off here is the outright dissembling.)

On Wednesday, Judge Walker Miller granted the school district’s motion for judgment on the pleadings and tossed the case in toto. The opinion is available here (pdf, 18 pages). The judge meticulously analyzes one by one the five causes of action Staver alleged in his complaint, concluding that each one failed as a matter of law.

The opinion is pretty much self-explanatory and readily comprehensible, so I’ll refrain from a detailed discussion. I only want to highlight a few points that illustrate what dirtball Staver and his cohorts at Liberty Counsel truly are.

The school board moved to dismiss Corder’s claims for declaratory and injunctive relief on mootness grounds. Corder graduated and received her diploma, the argument goes, so there’s no longer a live controversy between the parties. Liberty Counsel responded by claiming that their client was not seeking injunctive relief even thought the Staver-drafted complaint included a demand that the court “issue a permanent injunction” to prevent the school board from enforcing its “unwritten policy” of excising religious statements from student graduation speeches.

Equal Protection Clause claims regularly receive ten or more pages of analysis in cases such as this. The applicable law is complex and the calls can get quite close. Here, the court was able to shitcan the EP claim with near-record brevity:

Defendant argues that Plaintiff’s equal protection claim should be dismissed because she was not treated differently than anyone similarly situated to her; since Plaintiff was the only one who deviated from her rehearsed speech, she cannot show that Defendant treated her differently without a legally justified basis. In response, Plaintiff’s argument is that she did not do anything wrong, she only “rehearsed a speech before Mr. Brewer and then offered a speech referencing Jesus,” which should not be considered a misrepresentation. Response at 18. Plaintiff’s argument is unavailing. Although Plaintiff disagrees that her conduct should be considered “deceitful,” there is no indication that any other student engaged in the same conduct she did and, therefore, she was not treated differently from any similarly situated person. Therefore, this claim also must fail.

My, oh my. Keep pleading those frivolous claims, Mat. Someday you’ll dethrone Roy Pearson as the poster boy for tort “reform.”

In another argument, discussed on Page 11 of the opinion, Liberty Counsel seems to be suggesting that a Colorado state statute trumps federal Free Speech Clause jurisprudence. Dissemblin’ Mat and the other lawyers at Liberty Counsel went to law school, so I assume they were exposed to the Supremacy Clause at some point in their lives. Oh, how soon they forget.

H/T - Religion Clause

Colorado GOP loses registrant lead

The Republican Party no longer has the highest number of registered voters here in Colorado. So who’s the new leader? Democrats? Hell no, buddeh! That’s crazy talk. This is, after all, Colorado.

The leading voter registration status is now “Unaffiliated”, as it was from 1978 to 1990. According to the Rocky Mountain News:

2008 Unaffiliated 1,021,979 34.19%

Republican 1,020,433 34.14%

Democrat 932,603 31.2%

Republicans have lost some 42,000 registered voters in 2006, whereas Democrats have picked up about 32,000. Looks like George W. Bush may have done a bit of good after all, however unintentionally.

Colorado Democratic Delegate Totals

Ever since Super Tuesday the assemblage of dumbasses collectively known as the mainstream media has been reporting on how many delegates Colorado will be sending to the Democratic National Convention, along with who they’re pledged to vote for. Trouble is, there were no such delegates until the conclusion of the Colorado Democratic Party’s State Assembly and Convention last weekend.

On Super Tuesday we held our precinct caucuses. Those began with a preference poll for presidential candidates. The results of the preference poll formed the basis of the media’s blatherings about delegate totals. Trouble is, the preference poll doesn’t mean much in Colorado’s rather Byzantine delegate selection process.

At the caucuses we selected delegates to attend county party conventions and separate conventions held in each of Colorado’s seven congressional districts. At the county conventions we elected delegates to the state party convention. The preference polling at the various levels determines how many delegates will be sent to the next level and how many of those delegates will be “pledged” to particular candidates. However, the pledges aren’t binding. For instance, the precinct sent me to the county convention as an Obama delegate, but I was free to change my mind and vote for Clinton upon showing up at the convention. (I didn’t, of course, but I could have.)

The process culminates in the state party convention, held last weekend in Colorado Springs. Only when that event ends do we know how many delegates Colorado will send to the national convention and who they’re pledged to support.

In addition, Democrats in each congressional district hold separate Congressional District Conventions. At those events we elect delegates to the national convention over and above those elected at the state convention.

So now, at long last, the totals are in. You’ll find the information here on the homepage of CDP’s website.

From the state convention, Obama got 13 delegates and 2 alternates to the national convention. Clinton got six delegates and no alternates. From the seven congressional district conventions, Obama got 23 delegates and 7 alternates, while Clinton tallied 13 delegates and no alternates. Final tally: Obama - 36 delegates (and 9 alternates); Clinton - 19 delegates.

Of course, now that accurate totals are available, the mainstream media has long since lost interest in Colorado. That state of affairs will no doubt continue until the national convention itself, which takes place in Denver.

Caplis: Liar, Ignoramus or Both?

Colorado radio has no shortage of half-sentient, bird brained, right wing screaming heads. Take Dan Caplis of KHOW-AM, for instance. Colorado Media Matters reports here on Caplis’ tirade against the California Supreme Court’s recent gay marriage ruling.

As is true of all his compatriots, Caplis gets no points whatsoever for originality. He gives us the usual half-cooked gruel of “liberal activist judges . . . stripping our democracy of any real meaning, because these judges are unelected, they’re essentially unimpeachable, they’re unaccountable.” And, of course, “everybody knows that conservative appointees are not gonna create some constitutional right to gay marriage[.]“

Predictably, Caplis is fulla shit about everything. First of all, what’s this “our democracy” business? California and Colorado are separate sovereigns, Cochise. Their democracy isn’t ours and our democracy isn’t theirs. The California Supreme Court based its decision on provisions of the California Constitution. Thanks largely to the fact that farting too loudly in this state amends the Colorado Constitution by operation of law, we have Article II, Section 31, which provides that “[o]nly a union of one man and one woman shall be valid or recognized as a marriage in this state.” So cheer up, Danny. Colorado is safe from the liberal scourge of equal protection under the law.

Conservative appointees would never do such a thing? Try telling that to the Republican California governors who appointed six of the seven current California Supreme Court Justices.

Unaccountable? Bitch, please. “Justices are appointed by the Governor and confirmed by the Commission on Judicial Appointments. The appointments are confirmed by the public at the next general election; justices also come before voters at the end of their 12-year terms.”

Unimpeachable? Okay, so they don’t call it “impeachment.” But California state officers are subject to recall, and “state officer” includes “Justices of Courts of Appeal and the State Supreme Court.”

So, Mr. Caplis, if you’re truly as outraged as you claim to be, I suggest that you cash in your chips at KHOW, head west and get those recall proceedings under way. Otherwise, people might think you’re nothing but a grandstanding pussy, and they’d be correct.

Finally, since this is a good a spot as any, REPUBLICAN SPACE RANGERS

Colorado Legislature bones ERISA insurers

This is the first in what I hope will be a series of entries describing the fine work done by the Colorado Legislature regarding insurance during its recently concluded session.

The topic of this entry is House Bill 1407 (pdf, 8 pages), the brainchild of Rep. Andrew Romanoff (D-Denver) and Sen. Ken Gordon (D-Denver). The bill passed by big margins in both the House (42-22) and the Senate (24-11), and now needs only the governor’s signature.

H.B. 1407 increases the fines that the Insurance Commissioner can levy against an insurance company for violating statutes and regulations, but the meat of the bill is newly-added C.R.S. §§ 10-3-1115 and 10-3-1116. Those sections prohibit insurers from unreasonably denying or delaying payment of first-party claims. Generally speaking, a first-party claim is a claim for insurance benefits made under your own policy. The bill doesn’t apply to third-party claims, i.e., claims made against the liability insurance policy of somebody else.

If a first-party insurer denies a claim or delays payment “without a reasonable basis,” the insured can file suit in district court and recover double benefits, costs and attorney fees. Before H.B. 1407, the insurance code expressly disclaimed any private right of action. Perhaps now insurance companies will think twice before being such insufferably adversarial cocks when handling first-party claims.

But that ain’t the half of it! Both of the new C.R.S. sections cited above contain a legislative declaration that “this section is a law regulating insurance.” Yeah, well, no shit. Why did the state legislature go out of its way to declare the painfully obvious?

The answer lies in an abomination known as the federal Employee Retirement Income Security Act (”ERISA”), previously discussed here. ERISA governs employee benefit plans, which includes employer-provided health, life and disability insurance. As interpreted by the federal courts, ERISA is a veritable cornucopia of treasures for insurance companies that underwrite employee benefit plans.

For instance, imagine a world in which: (1) an insurance company can insert in its policies a provision stating that the insurer itself has sole and absolute discretion to interpret the policy’s terms and determine eligibility for benefits; and (2) courts will enforce such a provision. Incredibly enough, that’s not just some insurance company CEO’s clown-punching fantasy; as to ERISA-governed benefit plans, it’s the law. If the plan contains the magic language, the insurer’s decision to deny coverage is subject only to “arbitrary and capricious” review in court. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). As you might imagine, that standard pretty much amounts to de facto immunity from judicial review.

Where it applies, ERISA preempts (i.e., renders unenforceable) state law. However, an exception to the general rule of preemption exists for “any law of any State which regulates insurance . . . .” 29 U.S.C. § 1144(b)(2)(A). And that, my friends, is why the Colorado Legislature included that peculiar statement in §§ 10-3-1115 and 10-3-1116. They wanted to avoid the preemptive effects of ERISA.

That’s a big deal for two reasons. First, in the appalling small percentage of ERISA-controlled cases that the insured actually manages to win, recovery is limited to the benefits due under the plan. 29 U.S.C. § 1132(a)(1)(B). Under H.B. 1407, a successful claimant gets double damages and attorney fees.

Second, H.B. 1407 prohibits insurers from inserting Firestone-style “sole discretion” provisions into health and disability plans and policies issued in this here state. Such plans and policies must provide for de novo judicial review of benefits denials and a trial by jury, something else you can’t get in an ERISA-governed case.

Presumably, ERISA’s tender mercies still inure to the benefit of self-funded plans and to insurance policies issued in other states, but H.B. 1407 is a massive step in the right direction. Mad, mad props to Rep. Romanoff, Sen. Gordon and every state legislator who had the stones to vote for this bill.

Update (05/20/08): Got an email from the Colorado Trial Lawyers Association today saying that the insurance industry is lobbying the hell out of Governor Ritter in the hope of getting H.B. 1407 vetoed.  Stay tuned.

We’re Number Nine!

Oh, glorious day! The “Institute for Legal Reform,” a charade generated by that whorishly greedy gaggle of shameless liars collectively known as the U.S. Chamber of Commerce, has published its annual Lawsuit Climate report for 2008.

Turns out that Colorado is the state with the ninth Mostest Fairest Litigation Climate in all the land, up from a dismal twenty-first place showing in 2007.

We have a way to go before overtaking states like Delaware and Indiana, where people injured through the negligence of others are staked to the ground and beaten vigorously about the crotch with canoe paddles preemptively before they can even think about making a claim, but we’re making progress, dammit.

After all, defense verdicts in injury cases arising from rear-end car crashes are running at about seventy percent in Colorado these days. That’s right: Seventy. Percent. And we’re not talking med mal here. We’re talking rear-end car crashes, the clearest of all clear liability cases.

Lesson: Colorado’s a magnificent place to live, but don’t ever, under any circumstances, get hurt here. If you do, you’re pretty much boned.

Proponent of “fertilized eggs are people too” amendment goes all B.A. Baracus on fellow conservatives

Colorado Confidential brings us this update on the efforts of 20-year-old correspondence school law student Kristi Burton’s efforts to amend the Colorado Constitution by defining “person” to include anything from a fertilized human egg on up. My previous entry on the ballot initiative is available here.

As the video in the CC article shows, Ms. Burton is none too pleased with her conservative brethren. The male buffoon in the video, American Life League spokesmodel Michael Hichborn, gets pretty worked up as well:

“Now, amazingly there are those that claim that now is not the right time for a personhood amendment. The old saying attributed to Edmund Burke ‘All that is necessary for the triumph of evil is that good men do nothing’ is well applied to those standing on the sidelines because they decided to do just what Burke warned against. They’re simply doing nothing. And while they sit on their hands waiting — organizations like NARAL, Planned Parenthood and NOW are working to ensure another 35 years of killing babies.”

CC reports that Ms. Burton has about 60,000 of the approximately 76,000 signatures needed to get the initiative on the ballot. The deadline is May 14. Whether she’ll get the necessary signatures, together with a sufficient cushion of excess signatures to make up for the inevitable thousands of signatures that end up being invalidated, remains to be seen.

Colorado Supreme Court weighs in on expert disclosure sanctions

I haven’t done a Colorado Supreme Court Round-Up for months, and probably won’t be doing one again. Truth be told, I have neither the time nor the desire for such efforts. Besides, the folks at Isaacson Rosenbaum, P.C. are doing the legwork on their Colorado Appeals Blog, which covers both the Supreme Court and the Colorado Court of Appeals.

Rest assured, though, that whenever our state’s high court does something totally crazy or otherwise noteworthy in a civil case, I’ll be on it. Yesterday’s decision in Trattler v. Citron (pdf, 39 pages) qualifies for coverage in the “otherwise noteworthy” category.

As in most states, Colorado’s rules of civil procedure contain detailed requirements for disclosure of information regarding expert witnesses a party intends to present at trial. Rule 26(a)(2)(B)(I) requires that, for each expert, a litigant disclose to the other side:

1) the identity of expert witnesses; 2) the qualifications for those witnesses; 3) a summary report of the experts’ findings relative to the case at issue; 4) any exhibits to be used; 5) a list of the experts’ past publications; 6) the compensation received by the expert for work in this case; and 7) a list of the cases in which the experts testified over the previous four years.

Unless the court otherwise directs, the claiming party must make the required disclosures at least 120 days before trial.* C.R.C.P. 26(a)(2)(C)(I).

Rule 37(c)(1) provides the sanctions for failing to make the required disclosures. The first sentence of that rule reads:

A party that without substantial justification fails to disclose information required by C.R.C.P. Rules 26(a) or 26(e) shall not, unless such failure is harmless, be permitted to present any evidence not so disclosed at trial or on a motion made pursuant to C.R.C.P. 56.

Under that provision, a court may exclude undisclosed or improperly disclosed expert evidence unless the proffering party proves to the judge’s satisfaction that the disclosure violation was either “harmless” or “substantially justified.”

The second sentence of Rule 37(c)(1) provides that exclusion isn’t the only option, and grants courts leeway to make the proverbial punishment fit the crime:

In addition to, or in lieu of this action, the court, on motion after affording an opportunity to be heard, may impose other appropriate sanctions, which, in addition to requiring payment of reasonable expenses including attorney fees caused by the failure, may include any of the actions authorized pursuant to subsections (b)(2)(A), (b)(2)(B), and (b)(2)(C) of this rule.

“Other appropriate sanctions” is squishy by design, giving courts plenty of discretion to fashion appropriate remedies for disclosure rule violations based on the facts of each case.

Which brings us to Trattler, a medical negligence/wrongful death case in which the plaintiff alleged that two doctors negligently failed to diagnose a blocked artery that caused her husband’s fatal heart attack. Expert testimony is crucial in medical malpractice cases. In fact, the vast majority of cases can’t even proceed without it. Here in Colorado, the plaintiff or his lawyer must certify to the court within sixty days after filing a lawsuit that an expert has reviewed the evidence and that the claim is substantially justified.

The plaintiff in Trattler hired two doctors who planned to testify that the defendant physicians breached the applicable standard of medical care in treating plaintiff’s husband. The plaintiff provided the defendants with timely disclosure of her experts’ identities, qualifications, opinions and recent publications, but didn’t supply a complete list of all other cases in which her experts had testified during the past four years.

Defense counsel did some digging and found out that the testimony lists that the experts provided were incomplete. Defendants filed, and the trial judge granted, motions to preclude the experts from testifying based on the incomplete prior testimony disclosure. The judge didn’t blame the plaintiff or her lawyer (all the blame belonged to the experts in the judge’s mind), but found Rule 37(c)(1) mandates exclusion under these circumstances. Three days before trial, the plaintiff found herself without her two key experts. The court dismissed the plaintiff’s claims against one of the defendants and the jury found in favor of the other.

By a vote of 6-1 the Supreme Court reversed and remanded the case for a new trial. Noting the obvious, the Court wrote that Rule 37(c)(1) authorized full-blown exclusion only as to “evidence not so disclosed.” Here, the plaintiff disclosed the identity, qualifications and opinions of her experts, and nothing in Rule 37(c)(1) authorized preclusion of disclosed information.

The only item on which plaintiff’s expert disclosure was incomplete was prior testimony. Precluding that evidence is nonsensical seeing as how the defendants might want to use the experts’ testimonial histories to impeach them.

On the facts of this case, precluding the experts from testifying at all was way out of proportion to the severity of the discovery violation. The trial court should have considered (and can consider on remand) alternative sanctions:

When considering an appropriate sanction for nondisclosure or late disclosure of testimonial history, the trial court should be guided by the alternatives specified in Rule 37(c)(1), including the alternatives cross referenced in sections (b)(2)(A), (b)(2)(B), and (b)(2)(C) of the rule. Thus, the court may consider rescheduling depositions or trial, payment of attorney fees and costs, contempt proceedings against the experts, admitting evidence of the noncompliance, instructing the jury that noncompliance may reflect on the credibility of the witness, or any other sanction directly commensurate with the prejudice caused.

All in all, a just result. The case also provides one helluva lesson in the importance of lawyers pushing the hell out of their experts to get the required disclosure information. Cases fall apart in this state all the goddamn time based on failure to comply with disclosure deadlines.

* Beware of places such as the Weld County District Court, which routinely sets the plaintiff’s expert disclosure deadline at 160 days before trial.

Sunday Booze Sales Coming to Colorado

Today the governor signed a bill that did away with an age-old Colorado “blue law” prohibiting liquor stores from doing business on Sundays. Senate Bill 82 (pdf, 3 pages) takes effect on July 1, 2008. The law prohibiting anyone other than state-licensed liquor vendors to sell real booze remains in effect, as does the prohibition against selling booze on Christmas. Colorado thus becomes the 35th state to allow Sunday sales.

The law doesn’t require liquor stores to open on Sunday, of course; it merely removes the legal impediment. As a practical matter, though, the proprietors of mom & pop liquor stores no longer have any days off. They’ll need to work seven days per week to keep up with the big boys.

The last big statewide blue law still in effect prohibits Sunday car sales. How that’s lasted as long as it has is anyone’s guess.