Against Municipal Courts In Colorado

The Denver Post has an article highlighting the problems of having municipal courts not of record incarcerate people who aren't represented by lawyers with no record of the proceedings, and notes that a bill this session seeks to change that. The bill is HB26-1134:

Fairness & Transparency in Municipal Court: Concerning measures to ensure that municipal court defendants are subject to conditions similar to state court defendants.

The bill clarifies that municipal court defendants have a right to counsel and that municipal defense counsel have the same notice, case information, and opportunity to meet with their clients as do state-level defense counsel. Current law prohibits paying indigent municipal defense counsel on a fixed or flat-fee payment structure if the municipality prosecutes domestic violence cases. The bill applies the prohibition to all municipalities.

All municipal court proceedings are required to be open to public observation. Virtual observation is required for all in-custody proceedings, and prompt resolution of municipal cases is required.

Last year, the Colorado Supreme Court ruled that municipalities with ordinances that parallel state crimes can't have higher penalties than the state crimes, in the wake of the state legislature reducing penalties for misdemeanors, and in the wake of Governor Polis vetoing a bill that would have mandated the same result.

A different bill last legislative session addressed the problem with municipal court judges abusing failure to appear warrants in a way that led to disproportionately harsh punishments.

None of these bills address yet another problem with the municipal court system, which is that municipal court judges are not nearly as independent of the municipal legislative bodies as state court judges are because they are appointed by the Governor in a merit based system that makes state court's independent of local governments (except for Denver County Court which is quasi-municipal).

Municipal courts also leave people arrested languishing in jail for longer than the U.S. Constitution allows because they hold court less frequently than state courts.

The simple and best solution would be to abolish municipal courts entirely and to give county court's jurisdiction over ordinance violations (which could still be prosecuted by City attorneys). 

Perhaps parking violations could be made administrative proceedings of municipalities limited to fines, boot, and tow orders instead of municipal violations.

Typos In Blog Posts

A rare essay about typos in blog posts, expressing views that largely mirror my own views on the topic, can be found here.

The MAGA-GOP Coalition Is Falling Apart

 

Trump's decade plus old hold on the GOP is slipping, because Republican political leaders they know that their prospects in the midterms look apocalyptically bad as a result of his actions over the last year.

Military Updates

Initially without links:

* 70%-80% of the casualties in the Ukraine War have been from drones. Heavy armored units en masse have almost vanished as a tactic and a very large share of all artillery batteries have been destroyed. Russia has had 1.2 million military casualties, Ukraine has had 0.6 million military casualties. The fourth anniversary of the start of the latest phase of the war is coming up later this month. Russia's rate of territorial advance has been the slowest in the last century. Europe is stepping up support for Ukraine and considering deploying troops as U.S. support under Trump continues to be fickle. Ukraine's campaign against oil and gas infrastructure in Russia seems to have subsided somewhat although it has hit some relatively low value targets near Moscow. Russia has stepped up strikes against civilian targets in Ukraine (more or less indiscriminately). Russia is nearing a breaking point economically, although it has finally started to ramp up its military-industrial capacity someewhat. U.S. and European forces are being more pro-active in interrupting "ghost fleet" trade in sanctioned Russian oil.

* Germany has invented anti-torpedo torpedos.

* Japan has invented a 40mm railgun for one of its ship classes. It overcame the hurdles faced by the U.S. program with a 40mm round instead of a 155mm round, different materials in the barrel that have different electrical properties, and gallium capacitors that reduce the power supply footprint. It can fire 120 rounds in shot succession and doesn't suffer the barrel burn out problem of the U.S. attempt. It can fit in a shipping contain plus a small turret. This would be mostly useful in anti-small craft, anti-drone, anti-helicopter, and missile interception roles. It is quite accurate although range and accuracy details are not publicly available. The same ship would have lasers, something that China is also investing it. But lasers are only effective for 3-5 km, and can be disrupted by heavy sea spray, fog, low lying clouds, storms, and fog, so the lasers would be mostly for close in missile and drone defense together with something like a Phalanx Close In Weapons System. Railgun rounds are basically immune to lasers.

* The U.S. has developed a large area anti-drone system that uses microwaves to generate an electromagnetic pulse that can take down hundreds of drones at once, deployed on military truck.

* The U.S. is stepping up B-21 Raider production, a stealth bomber similar to the B-2 but a bit smaller and more modern.

* A prototype of a next generation Abrams tank was shown off at the Detroit auto show.

* China claims to have ready for prime time sensors that can see U.S. stealth aircraft.

* Progress is being made in ground drones, generally, either on a small unmanned ATV scale or a robot dog with a rifle sized weapon approach.

* Progress is being made on surface and submarine drones.

* Progress is being made on optical gun sight attachments that make it much easier to identify sniper sights that would otherwise be almost invisible at ranges up to a mile.

* China continues to be active in deploying its navy, coast guard, are paramilitary maritime forces around the Philippines and the South China sea.

Siblings, Conflict, and Personalities

This is a question and answer from Facebook (I won't identify the person asking the question, and if you are anyone other than the person asking the question and know what I am referencing, please don't identify them or link to the conversation in the comments). I have added paragraph breaks that the Facebook user interface makes more difficult and less natural to do, for easier reading.

Question: 

I was raised as an only child. Half and step sibs came later in life, but from birth til leaving home, it was just me. I have felt lucky about this. 

Almost everyone I know with brothers and sisters have had fraught, difficult relationships with them. Is this as common as it seems to me? If you have siblings, has it been an easy relationship or not so much?

My Answer:

Being an only definitely influences your personality, not always for the better (stereotypically, more selfish, better at interacting with adults but less good at interacting with peers, less likely to understand give and take in relationships). 

My relationship with my brother (who is three years younger) is fine, but not super close. Siblings who are one or two years apart tend to have more intense relationships, sometimes for better, and sometimes for worse. Twins, of course, are their own thing (and are almost always on pretty good terms with each other). Big age difference siblings start to be more similar to only children as the age gap gets greater. My two children, who are two years apart, and my wife and her sister, who were two years apart, are probably closer than my brother and I were at three years apart. 

Birth order (oldest, youngest, middle, etc.) also significantly impacts your personality and outlook on lots of thing - it even significantly predicts the side that a scientist is likely to take between two competing scientific theories. 

Both of my children benefitted in their relationships in life from having an opposite sex sibling. People who don't have an opposite sex sibling tend to be more wary of the opposite sex in early puberty. 

As an estate planner and probate lawyer for three decades (I no longer do that work), each additional sibling increases the likelihood of will contests and disputes (even in non-blended families). Families with two full siblings are usually low conflict when the last parent dies. At four full siblings it is 50-50 between high conflict and low conflict. At five or six, there are usually two or three factions among full blooded siblings, at seven or more there are almost always factions. 

Families that have half-siblings and step siblings have much more conflict than families with full siblings, although timing matters a lot. Non-full blood siblings who were pre-teens together living in the same household (or if some were pre-teens and the oldest was a young teen) interact much more like full siblings with each other and also almost never have romantic feelings for each other, unlike those who were never in the same household or started living together as teens or later who are more like roommates with each other and sometimes do have romantic feelings for each other. So sometimes in a blended family, some of the non-full blooded siblings act like full siblings to each other, while others do not.

Post-Script

On balance I think our society as a whole probably loses something of value by having more only children, and by having far fewer middle children, than it did historically, in terms of adult social interactions and in terms of having less variety in personality types when a mix of birth order related personality types is valuable.

Also, while outside my realm of personal experience, it is pretty clear that children raised in polygamous families (usually with many children with each of the sister wives), that at least in Mormon history, those children had less desirable life outcomes than children raised in large monogamous families (with a far small total number of children in the household from their shared father).

Brainstorming Possible Public Law Reforms

There are important gaps in our public law system:

* If we are to reject taxpayer standing, voter standing, and citizen standing, we need to empower someone to enforce violations of the law that harm the general public, but not any specific person differently from any other, like many forms of public corruption.

* Judges should have the power to remove government officials who defy court orders and commit serious breaches of the public trust from office, certainly, officials who are not elected officials.

* There needs to be a parallel to 42 U.S.C. § 1983 for federal officials and agents (i.e. people who act under color of federal law) that is more robust than the federal common law Bivens remedy, which doesn't cover all federal officials or all federal rights.

* The unitary executive theory adopted by the U.S. Supreme Court is just a pure political trick, with no historical basis. INS v. Chadha (1983), in which the U.S. Supreme Court held that legislative vetos in duly enacted laws were unconstitutional was also a bad decision.

* The gutting of the insurrection clause of the 14th Amendment by SCOTUS was a horrible legal decision not supported by any fair reading of the document.

* The grant of immunity from criminal prosecution for all official acts of the President was a very bad idea. Granting both civil immunity and criminal immunity should be a matter of common law or statutory law that can be changed by Congress, not a matter of constitutional law.

* Granting unfettered pardon power to the President now looks like it was a bad idea on the part of the Founders. Notably, a great many U.S. states do not afford the same power to their Governors.

* Requiring a two-thirds majority of both Houses of Congress to override a Presidential veto greatly upsets the proper balance of power between Congress and the President. Let the President veto legislation that unwittingly contains a bad provision which the President noticed but Congress did not. But let them reaffirm and override it by a simple majority of both houses. Part of the big picture problem in the United States is that it is far too hard to legislate, so the courts and regulations adopted by the executive have to fill the gap.

* Making the respective houses of Congress the judges of their own elections was a bad idea.

* The impeachment power is too weak and too political. And, it should be easier and less political to remove a President (or any other public official) for disability.

* A proposal is pending in Colorado to remove absolute immunity for prosecutors from civil liability, which as drafted I don't support, even though I can somewhat sympathize with the motivations for it. Judges also have absolute immunity. I think that the solution is to make a finding of professional or judicial misconduct or criminal conduct have the collateral consequence of forfeiting absolute immunity, with the statute of limitations for a private civil action to impose liability in those cases running from the time that there is a final criminal conviction or of professional or judicial misconduct. If a judge convicts you of a crime and sentences you to a private prison due to a bribe from a private prison investor, and the judge is convicted of that, the judge should have civil liability to you.

* An alternative to the fault based approach of § 1983 and Bivens for civil rights violations, would be to instead adopt the takings jurisprudence that applies when the government takes property without fair compensation. Rather than being perpetrator focused, if someone is deprived of their civil rights, they would be entitled to just, compensatory only, compensation, by the government under whose color the deprivation occurred, without regard to the intent of the person violating the right, and without individual liability on the part of the agents who participated in the deprivation of civil rights. Indemnification and defense mandates of public employees basically gets you to a similar place in most cases, but denies any relief when someone is deprived of life or liberty wrongfully, if no one individual intentional or almost intentionally violates their rights (e.g. if the injuries or destroyed property or other harm arose from mere negligence or mistakes, or due to broken systems rather than malicious individuals). Thus, if you were incarcerated and later found to be innocent, or incurred attorneys' fees defending a criminal case only to be acquitted, you would be entitled to compensation from the government that brought the charges and incarcerated you, without regard to how you were wrongfully convicted or were charged with a crime for which you were not convicted. Qualified immunity and intent requirements would be much less problematic if § 1983 lawsuits and Bivens actions were secondary remedies to punish individual bad apples (and included, for example disqualification from serving in law enforcement for serious willful wrongdoing), while municipal liability for compensatory relief only was available much more easily.

* Many countries vest prosecutorial power in the judiciary rather than in the executive branch, and many states have an attorney general or DA who is independently elected to create a built in special prosecutor. There is wisdom in depriving an elected executive branch politician like a President or Governor or Mayor from having absolute control over enforcement of the criminal laws.

* Colorado has the Colorado Open Records Act and the Colorado Criminal Justice Records Act to allow pre-litigation discovery of incidents that might give rise to civil liability on the part of public officials, which makes Warne v. Hall, which prevents people from suing first and getting discovery to determine if they really have a claim, by adopting the federal standards of Twombly and Iqbal for pleading civil actions more tolerable than in other contexts. It isn't clear to me that FOIA (the Freedom of Information Act) at the federal level, provides an equally effective tool to bring claims against federal public officials.

* While allowing all U.S. District Court judges to impose national injunctions can be problematic, mostly because it allows for forum shopping, it is also deeply problematic to allow the federal government to re-litigate issues that it has lost in other jurisdictions over and over again, which is just reverse forum shopping. Maybe national injunction power needs to be reserved for the U.S. District Court for the District of Columbia.

* Felons should be able to vote. But maybe they shouldn't be able to run for public office without some process establishing that they were reformed or just the passage of time of a certain number of years after they fully served their sentence.

* A statutory obligation for all law enforcement officers to be unmasked and clearly display their badges subject to narrow exceptions that would have to be authorized much like a search warrant on a case by case basis, wouldn't be a bad law.

* We need a better structure to limit the use of military force and covert operations by intelligence agencies to legally authorized act, that doesn't simply give the President absolute power.

* No President should have the power to unilaterally impose any taxes, including tariffs.

Better Isn't Impossible, Other Countries Do It

 

U.S. Homicide Rate At Record Low

There are lots of theories about why this is the case.

It isn't just better medical care that turns homicides into aggravated assaults, because almost all form of serious crimes have declined.

This number also conceals greater regional variation between high crime states and low crime states, but the trend apart from a little year to year noise in individual states, has been widespread.

Prosecuting Federal Officials For State Law Crimes

Prosecuting federal officials for crimes arising under state law committed in the course of their federal duties is not only not forbidden by the supremacy clause, it is actually expressly contemplated and provided for by a federal statute. 

In those cases, the case is started in state court, but may be removed to federal court, where the case continues to be prosecuted by state prosecutors in federal court with a federal judge presiding.

28 U.S. Code § 1442 - Federal officers or agencies sued or prosecuted

A civil action or criminal prosecution that is commenced in a State court and that is against or directed to any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:

(1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.

(2) A property holder whose title is derived from any such officer, where such action or prosecution affects the validity of any law of the United States.

(3) Any officer of the courts of the United States, for or relating to any act under color of office or in the performance of his duties;

(4) Any officer of either House of Congress, for or relating to any act in the discharge of his official duty under an order of such House.

(b) A personal action commenced in any State court by an alien against any citizen of a State who is, or at the time the alleged action accrued was, a civil officer of the United States and is a nonresident of such State, wherein jurisdiction is obtained by the State court by personal service of process, may be removed by the defendant to the district court of the United States for the district and division in which the defendant was served with process.

(c) Solely for purposes of determining the propriety of removal under subsection (a), a law enforcement officer, who is the defendant in a criminal prosecution, shall be deemed to have been acting under the color of his office if the officer—

(1) protected an individual in the presence of the officer from a crime of violence;

(2) provided immediate assistance to an individual who suffered, or who was threatened with, bodily harm; or

(3) prevented the escape of any individual who the officer reasonably believed to have committed, or was about to commit, in the presence of the officer, a crime of violence that resulted in, or was likely to result in, death or serious bodily injury.

(d) In this section, the following definitions apply:

(1) The terms “civil action” and “criminal prosecution” include any proceeding (whether or not ancillary to another proceeding) to the extent that in such proceeding a judicial order, including a subpoena for testimony or documents, is sought or issued. If removal is sought for a proceeding described in the previous sentence, and there is no other basis for removal, only that proceeding may be removed to the district court.

(2) The term “crime of violence” has the meaning given that term in section 16 of title 18.

(3) The term “law enforcement officer” means any employee described in subparagraph (A), (B), or (C) of section 8401(17) of title 5 and any special agent in the Diplomatic Security Service of the Department of State.

(4) The term “serious bodily injury” has the meaning given that term in section 1365 of title 18.

(5) The term “State” includes the District of Columbia, United States territories and insular possessions, and Indian country (as defined in section 1151 of title 18).

(6) The term “State court” includes the Superior Court of the District of Columbia, a court of a United States territory or insular possession, and a tribal court.

28 U.S. Code § 1455 - Procedure for removal of criminal prosecutions

(a) Notice of Removal.—

A defendant or defendants desiring to remove any criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such prosecution is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.

(b) Requirements.—

(1) A notice of removal of a criminal prosecution shall be filed not later than 30 days after the arraignment in the State court, or at any time before trial, whichever is earlier, except that for good cause shown the United States district court may enter an order granting the defendant or defendants leave to file the notice at a later time.

(2) A notice of removal of a criminal prosecution shall include all grounds for such removal. A failure to state grounds that exist at the time of the filing of the notice shall constitute a waiver of such grounds, and a second notice may be filed only on grounds not existing at the time of the original notice. For good cause shown, the United States district court may grant relief from the limitations of this paragraph.

(3) The filing of a notice of removal of a criminal prosecution shall not prevent the State court in which such prosecution is pending from proceeding further, except that a judgment of conviction shall not be entered unless the prosecution is first remanded.

(4) The United States district court in which such notice is filed shall examine the notice promptly. If it clearly appears on the face of the notice and any exhibits annexed thereto that removal should not be permitted, the court shall make an order for summary remand.

(5) If the United States district court does not order the summary remand of such prosecution, it shall order an evidentiary hearing to be held promptly and, after such hearing, shall make such disposition of the prosecution as justice shall require. If the United States district court determines that removal shall be permitted, it shall so notify the State court in which prosecution is pending, which shall proceed no further.

(c) Writ of Habeas Corpus.—

If the defendant or defendants are in actual custody on process issued by the State court, the district court shall issue its writ of habeas corpus, and the marshal shall thereupon take such defendant or defendants into the marshal’s custody and deliver a copy of the writ to the clerk of such State court.

Parenting

 

Good parenting is raising children who are a force to be reckoned with.

For those not familiar with the comic, Puck (left) informally adopted Daphne (right) as a toddler when Puck was still in college, in episode 3 on February 15, 1998, and has raised her for entire life in the comic over 28 years of our world time (Daphne now has a little sister, Miranda, who is about the same age as Daphne was when Puck adopted her, who is the child of Puck and her common law, soon to be legal, husband, Colin). This is the last panel of comic 831. The comic is currently on episode 843. It is set, primarily, in a medium sized city in Canada.

Old Suits

In a long period of disuse during the pandemic, almost all of my suits, many of them favorites that I'd had for many years, became unusable for anyone. Even an extremely poor person going to a thrift store for a suit (and lots of people could use my rather large sized suits) can't use one that moths have eaten the crouch out of.

Still, it is a shame to see a beloved item of clothing, worn often for important things, go, especially when it has huge amounts of remaining good fabric. A friend of my wife sometimes donates to a charity, similar to Thread Up, that may have use for the fabric, so that's probably where it will go.

I've been gradually replacing them, with about three new ones in the last year or two, now that people are going to court and depositions and even mediations in person on a regular basis again. But it will take time fore me to become sentimentally attached to the new ones.

I've invested is cedar for the closet, in an attempt to prevent a recurrence of this tragedy, although I'm cautiously pessimistic. It's worth trying, but I don't have high hopes.

The Economic Foundation Of A Liberal Geopolitics And Political Economy

The liberal answer to the despotism of Russia, Venezuela, Saudi Arabia, and other petrostates is ultimately pretty straightforward: use technology to make oil and other fossil fuels, which are also damaging our environment and driving climate change, irrelevant, replacing this with energy obtained from cleaner and decentralized renewable energy and vehicles that run on electricity.

Authoritarianism thrives in economies where the key factor of production is ownership of resources, whether that's farm land, gold, sliver, coal, or oil.

In contrast, in a commercial economy, where the most important factor of production is not just labor, but intelligent, voluntary work, you need to spread out economic resources to induce those willing, smart economic contributions from many people. The decentralization of wealth and power that flows from that favors a more open, democratic society, since the funds to run a state must be obtained through taxation of the many secured with their democratic permission, and not just ownership of those resources.

Commercial economies need to be market based. But they don't need to be truly "capitalist" in the Marxist sense, and indeed, ideally aren't. In a truly capitalist economy, in this sense, capital (i.e. raw wealth) is they key factor of production and ownership of it, while more amorphous than wealth based upon ownership of raw resources, can lead to similar effects.

If owning the factory or equipment becomes as important as owning land used to be in medieval and early modern Europe, you get a society that may look like a commercial economy, but is just as controlled by oligarchs as the economies that came before it. In the extreme of a capitalist society, financial wealth can dominate and replace land or oil as the concentrated factor of production that facilitates an economy based upon ownership of the key factor of production by a few.

To be clear, this doesn't mean that we should resort to Marxism's flawed "labor theory of value." What matters is results, not effort. Treating goods and services made less efficiently as more valuable than the same goods and services made efficiently is just dumb. But ideally, know how and efficiency that maximize the value of labor relative to the value of ownership of property is the goal.

This approach, like every approach has winners and losers, which somewhat align with modern political identities. Right wing politics are favored on one hand, by people who want to increase the importance of ownership of property as a key factor of production, and on the other hand, by people who are only capable of providing inefficient labor, who don't benefit from a system that rewards widespread and diverse forms of efficient labor.

Another threat to the political structure of a decentralized commercial economy is intellectual property. When it is too strong, as it is in our economy, ownership of intellectual property prevents innovation rather than encouraging it, and concentrates wealth in whomever owns a right to royalties from it.

The fundamental project of those seeking a healthier political economy in the West is to undermine the importance of merely owning wealth and intellectual property.

In the case of intellectual property, we've kept that at bay so far, by making it easy to copy and having lots of opportunities to innovate and make older intellectual property grow obsolete, although laws weakening intellectual property rights would help.

In the case of finance, we've tried to create financial institutions that make it possible to funnel access access to resources to people who have good ideas, while lowering the returns to ownership with low interest rates and modest returns to ownership of equity. But tax laws that favor unearned income over earned income have helped undermine this, as has the weakening of estate and inheritance and gift taxation that facilitates the transfer of wealth to dumb money.

Disgust and Horror Overload

This is just from this week and only captures about half of the miserable awful things that happened. It is one nightmare after another. Sometimes you just have to hang on and hope that the situation resolves, doing what you can, but recognizing that it is a collective effort.

Who Has The Most Oil?