Courthouse close with Justice inscribed

Welcome to Court Crawl, Colorado Politics' roundup of news from the third branch of government. The state Supreme Court released a consumer-friendly decision last week that made national news, and the U.S. Court of Appeals for the 10th Circuit will issue a decision in the upcoming months that could recognize that the First Amendment protects bystander recordings of police officers.

The surgery and the six-figure hospital bill

•  Readers of The Court Crawl are likely familiar with the story of Lisa Melody French, whose 2014 spinal surgery resulted in a hospital charging her $229,000 when it originally estimated she would only have to pay $1,337. The hospital, part of Centura Health Corporation, decided to sue French because she had agreed to pay "all charges of the hospital." The question for the Colorado Supreme Court was whether "all charges" was the reasonable value owed for the services — which an Adams County jury estimated at $767 — or the rate in the hospital's secret "chargemaster."

•  After oral arguments in March, during which the justices were critical of predatory hospital billing, the court's decision last Monday was no surprise: Because French had never agreed to the marked-up chargemaster rates, nor had she any idea the chargemaster even existed, she wasn't responsible for paying the hospital's unilateral price.

•  "Moreover, as courts and commentators have observed, hospital chargemasters have become increasingly arbitrary and, over time, have lost any direct connection to hospitals’ actual costs, reflecting, instead, inflated rates set to produce a targeted amount of profit for the hospitals after factoring in discounts negotiated with private and governmental insurers," wrote Justice Richard L. Gabriel in the May 16 opinion.

HEADSHOT Richard L. Gabriel

Colorado Supreme Court Justice Richard L. Gabriel

•  The story made its way into national outlets, including The New York Times and The Washington Post. Experts in health policy who spoke to Colorado Politics celebrated the consumer-friendly nature of the decision:

"I have not seen other similar decisions. The court used the lack of informed financial consent as the legal ground to determine that chargemaster price, which is unilaterally determined by hospitals, cannot represent the fair value of hospital services. This case established an important precedent for future cases involving surprise medical bills." —Ge Bai, professor of accounting and health policy/management at Johns Hopkins University

"As of 2019, hospital debt is the most common type of debt in bankruptcy proceedings across the country. Chargemaster rates for 'shoppable' planned health services are now required by regulation to be published on a hospital's website, but they are hard to read and understand. Even if they were easily understood, it wouldn't change the fact that patients often don't have a choice on where to seek care, especially in a hospital emergency where there is only one hospital system in the region." —Jennifer Brobst, incoming law professor at the University of Memphis

Other Supreme Court business

  The justices also interpreted a Colorado wage regulation on overtime pay circa 2015, finding that two truck drivers did qualify for overtime pay because they weren't "interstate" workers. The decision has limited application, though, because the state has since updated its overtime guidance.

  The Supreme Court has agreed to take on a child welfare appeal out of El Paso County, while Justices William W. Hood III and Carlos A. Samour Jr. both expressed interest in hearing an additional trio of criminal appeals. (Alas, it takes three votes for the court to review a case.)

A consequential First Amendment matter

  Three years ago this month, Abade Irizarry was video recording police officers performing a DUI stop in Lakewood, when one of them reportedly tried to block him from doing so. Irizarry's retaliation lawsuit previously hit a snag in federal court, however, because the 10th Circuit has never recognized that the First Amendment, which guarantees freedom of speech, protects the right to record law enforcement who perform their duties in public.

•  Last week, a three-judge panel held oral arguments in Irizarry's case. If the 10th Circuit decides to recognize such a First Amendment right, it will join six of the other 10 multistate circuit courts in doing so. The U.S. Department of Justice's Civil Rights Division is also urging such a move, something that does not happen often in a civil lawsuit where the federal government is not a party.

•  A decision recognizing the right to record would ensure that there will be consequences for police who retaliate against bystanders who document police brutality — for example, the recorded murder of George Floyd in Minneapolis or the beating of Rodney King in Los Angeles. There is a chance, however, the appeals court could sidestep the question, as it did in a similar decision out of Denver last year.

DPS-BLM-MARCH-06072020-KS-206

After large crowds of Denver Public Schools students, families, and supporters arrive at City Park, they kneel and sit in silence for 8 minutes and 46 seconds to signify how long George Floyd suffered by having a police officer's knee on his neck. The crowd first gathered at Civic Center Park and marching to the Martin Luther King, Jr. statue at City Park in support of Black Lives Matter on June 7, 2020 in Denver, Colorado.

Other noteworthy appeals

•  One member of the state's Court of Appeals, Judge Lino S. Lipinsky de Orlov, warned that law enforcement agencies may be violating defendants' constitutional right to due process if they have a pattern of failing to retain evidence, even if it's not malicious.

•  The Court of Appeals decided that the crime of disarming a police officer does not include officers' batons, and also that a Montrose County man wasn't justified in defending himself just because police unlawfully entered his home and tackled him.

•  Denver prosecutors told jurors about the defendant's 100+ Internet searches for pornography to prove that he committed sexual assault against a child. The Court of Appeals overturned the convictions, however, because the searches occurred after the alleged abuse and would've led the jury to improperly focus on the defendant's bad character.

•  The Court of Appeals ruled that an Arapahoe County magistrate shouldn't have given an 18-year-old who committed a crime as a juvenile a mandatory minimum jail sentence.

•  A panel of 10th Circuit judges seemed doubtful that the Cherry Creek School District respected the First Amendment rights of a student when it expelled him for an offensive Snapchat post made outside of school.

Byron R. White U.S. Courthouse for the 10th Circuit

The Byron R. White U.S. Courthouse in Denver, which houses the Court of Appeals for the 10th Circuit.

Vacancies and appointments

•  There are three finalists for a district court vacancy in the 18th Judicial District of Arapahoe, Douglas, Elbert and Lincoln counties. Benjamin T. Figa and David N. Karpel of Englewood, and Donna M. Stewart of Castle Rock are the contenders to succeed Judge David Stevens.

•  The governor also has three names of attorneys seeking to succeed Arapahoe County Court Judge Anne M. Ollada, who is resigning: Christina M. ApostoliLaQunya L. Baker and Michael J. Carter.

Miscellaneous decisions

  The Judicial Department saw its three legislative priorities pass during the recently-completed 2022 session of the General Assembly.

  There isn't direct evidence of sex discrimination at this point, but a federal judge ruled that a man can pursue his lawsuit against the University of Colorado for allegedly failing to hire him because he is a man.

  Sheneen McClain, who sued for the wrongful death of her son, Elijah McClain, at the hands of Aurora first responders, has now filed a lawsuit against her former attorney in the case.

  Read Colorado Politics' latest Q&A with a former public defender who now educates students about their constitutional rights.

Going on break

  The Court Crawl will be off next week for the Memorial Day holiday and will return on June 6.

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