Arbitration And State Constitutional Rights To A Jury Trial And To Civil Remedies

Somehow, I missed the notably case of Atalese v. U.S. Legal Services Group, LP, decided by the New Jersey Supreme Court on September 23, 2014 (certiorari was denied by the U.S. Supreme Court). In that case, a consumer contract contained an arbitration provision, but failed to clearly state in language that "a reasonable consumer" would understand that the consumer "was having her statutory right to seek relief in a court of law," so it held that the provision was unenforceable.

While the ruling made little difference in the long term "war" to limit the pernicious effects of arbitration clauses in consumer contracts, because the objection raised by the New Jersey Constitution is simple enough to draft around, it did have the effect of invalidating many, probably thousands, of existing contractual arbitration clauses in New Jersey which lacked the requisite language - freeing consumers under these existing contracts which are often hard to renegotiate from its constraints in the event of a dispute.  And, it did create a trap for the unwary that could invalidate future arbitration contracts, particularly those written into national agreements by non-New Jersey counsel who are unaware of the new New Jersey rule.

The ruling was also colored by the existence of Article I, Paragraph 9 of the New Jersey Constitution, which guarantees that “[t]he right of trial by jury shall remain inviolate.”

A Long Digression On The Right To A Jury Trial With An Emphasis On Colorado

The 7th Amendment to the United States Constitution guarantees the right to a trial by jury in civil cases in federal court where the right to a jury trial existed at common law at the time that the Bill of Right was adopted (i.e. 1791) and in the case of causes of action that didn't exist then, if a right to a jury trial existed in analogous cases at the time. See, e.g., Chauffeurs, Teamsters, and Helpers Local No. 391 v. Terry, 494 U.S. 558 (1990).  But, the 7th Amendment is one of a handful of provisions of the Bill of Rights which does not apply to state and local governments for rather intricate reasons of constitutional law collectively known as the incorporation doctrine, see, e.g., Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211 (1916), except that the scope of the right to a civil trial by jury (although not necessarily its existence) is controlled by the 7th Amendment in cases that are brought in state court under federal law, Dice v. Akron Canton & Youngstown R.R., 342 U.S. 359 (1952).

But, in practice, almost every U.S. state generally makes civil jury trials available to litigants in substantially the same circumstances in which they are available in federal court, except for Louisiana whose courts follow the French tradition established before the Louisiana Purchase of this territory from France in civil procedure and private law.  Many states do have isolated statutory carve outs from the general rule which most commonly include exceptions for small claims courts and courts of claims against state governments.  But, the general federal rule in the norm, despite its quirky, arbitrary, and sometimes hard to apply provisions.

No country in the world other than Canada makes such wide use of civil juries.  Countries outside the Anglo-American legal tradition never had them, and the United Kingdom and most other countries in the British Commonwealth have abolished them outside some very isolated circumstances (the few exceptions often include eminent domain condemnation cases and defamation cases).

In my home of Colorado, however, unlike New Jersey, the right to a civil jury isn't found in the state constitution. See, e.g. Continental Title Company v. District Court, 645 P.2d 1310 (Colo. 1982).  The right to a civil jury trial in Colorado used to be statutory, but that changed when the authority to make state court rule was (wisely) transferred to the Colorado Supreme Court.  See Miller v. District Court, 154 Colo. 125, 388 P.2d 763 (1964).

So, subject to a handful of isolated exceptions (e.g. in eminent domain cases), the right to a jury trial isn't a statutorily created right in Colorado either. Indeed, there are some classes of cases where jury trials are expressly prohibited by statute.

For example, in all cases arising under Colorado's dissolution of marriage act, "All issues raised by these proceedings shall be resolved by the court sitting without a jury." Section 14-10-107(6), Colorado Revised Statutes.  See also, e.g., In re Marriage of Lewis, 66 P.3d 204, 205 (Colo. App. 2003) ("All issues raised or presented in a dissolution proceeding are to be resolved by the court in equity sitting without a jury.").  Most issues is divorce cases wouldn't include a right to a jury anyway (even though judicial divorce didn't exist in Anglo-American jurisprudence in 1791), but some issues commonly decided in divorce cases might otherwise implicate a right to a jury trial.  For example, a request that a soon to be ex-spouse turn over a painting that is allegedly the separate property of the spouse requesting itwhere ownership of the item is disputed, looks a great deal like issues where there would ordinarily be a right to a jury trial outside of the divorce context.  But, in a divorce that issues would be decided by a judge instead.

Instead of arising via the state or federal constitution or a statute, in Colorado, the right to a civil jury trial in Colorado is almost exclusively a creature of Colorado Rules of Civil Procedure 38(a) (in District Court and Denver Probate Court) and 338(a) (in County Court where the jurisdictional limit in civil cases is $15,000 subject to some narrow exceptions for attorney' fees, costs and interest accruing after the case is filed). These rules are enacted by the Colorado Supreme Court and may be amended by it administratively without legislative or executive branch involvement.

By the terms of both of these rules, the right to a jury trial in Colorado exists in "actions for the recovery of specific real or personal property, with or without damages, or for money judgment claimed as due on contract, or as damages for breach of contract, or for injuries to person or property[.]"  C.R.C.P. 38(a) and C.R.C.P. 338(a).

In practice, however, the scope of the jury trial right in Colorado has been interpreted in Colorado to be essentially identical in broad outline to the 7th Amendments many esoteric provisions.  As under the 7th Amendment, the right to a civil jury trial in Colorado hinges on whether or not the claim asserted would have historically been brought in "courts of equity" or in "courts of law", even though Colorado had merged the two parallel English legal systems more than a century ago, as have the federal courts and all but a handful of state court systems (one notable exception is the State of Delaware).  See, e.g., Kaitz v. District Court, 650 P.2d 553 (Colo. 1982).

Similarly, as under the 7th Amendment, the right to a jury trial is determined on the face of the Complaint filed by the plaintiff (or third party plaintiff in the case of a third party complaint, or a cross claim filed by one defendant against another), without regard to any defenses or counterclaims brought by a defendant (or third party defendant or cross claim defendant). See Miller v. District Court, 154 Colo. 125, 388 P.2d 763 (1964) (complaints and cross claims) and Simpson v. Digiallonardo, 29 Colo. App. 556,. 488 P.2d 208 (1971) (third party complaints).

For example,  there is no right to a trial by jury in Colorado in a case to have a trust declared invalid. Ayres v. King, 665 P.2d 594 (Colo. 1983).  But, there is a right to a trial by jury in Colorado in a claim for personal injury arising out an automobile accident.  Suppose that Margaret wants to sue her uncle Fredrick to have a trust that he established that denies her a right to benefit if she marries a man who is not white (such as her current fiance) declared invalid, while Fredrick wants to sue Margaret for injuries he suffered when she carelessly backed into him while leaving his office a few months ago after discussing the trust issue.  Suppose further that Colorado's mandatory counterclaims statute (sometimes called the "entire controversy doctrine" when implemented via case law rather than by court rule) requires that if one of them sues the other, that any possible lawsuit that the person sued could bring against the person suing them is waived if not raised as a counterclaim.  Cf. Colorado Rule of Civil Procedure 13(a) (which might or might not actually apply to this fact pattern).  (Note, however, that, in part to preserve jury trial rights, the general rule that certain kinds of counterclaims are forever forfeited if they are not filed in a pending current lawsuit between two parties, does not apply to divorce actions in Colorado. Simmons v. Simmons, 773 P.2d 602, 605 (Colo. App. 1988)).

In this scenario, it Margaret files her lawsuit before Fredrick files his lawsuit, then Fredrick is not entitled to a jury trial on his counterclaim against Margaret for personal injuries arising from the car accident.  But, if Fredrick is the first to court and Margaret files her trust claims as a counterclaim, then Fredrick would be entitled to a trial by jury.

There is an exception to this general rule in the case of a fairly trivial loophole utilizing this rule under federal 7th Amendment law that threatened to swallow the rule, and has probably been adopted by many states facing the same issue.  While declaratory judgment actions were traditionally decided by courts of equity, and hence were not tried by juries, you cannot simply rush to court seeking declaratory judgment that you did not commit the federal tort for which there is a right to a trial by jury that someone else has threatened to sue you for, in order to turn their lawsuit into a counterclaim in an equitable action where a jury trial is not available.  Beacon Theaters, Inc. v. Westover, 359 U.S. 500 (1959).  The court reached its decision by relying on the doctrine that equitable remedies like declaratory judgments are not available as a remedy in cases that can be adequately and fully resolved in a court of law in a lawsuit over the underlying tort claim.

This is one the most odd and arbitrary rules of civil procedure that aptly illustrates the curious and problematic results of taking a quite strictly originalist approach to constitutional interpretation.  A well titled law review article on the subject, summed up the situation: Martin H. Redish, "Seventh Amendment Right To Jury Trial: A Study In The Irrationality Of Rational Decision Making", 70 Northwestern U. Law Rev. 486 (1976-1977).

But, despite the fact that states are under no legal obligation to follow the federal example in this situation, Colorado and almost every other state except Louisiana does just that.  It is a stunning example of how often state legislatures do not act as the "laboratories of democracy" that they are often described as in superficial civics class descriptions of federalism, and instead slavishly act based upon inertia and imitation of federal or uniform law models, even when they are under no obligation to do so and the status quo is one that no one would design if they were starting from scratch.

Some empirical data on civil jury trials in Colorado in 2014

While jury trials are legally available equally in district court and in county court, in practice, county court civil jury trials are extreme rare in Colorado. As of 2014, a jury trial is actually held in about one in 70 district court civil cases in which a jury trial is available, and in about one in 4,816 county court civil cases in which a jury trial is available.  In district court civil cases, 51.8% of trials are to a jury.  In contrast, in county court civil cases, 1.7% of trials are to a jury.  Thus, a jury trial is 69 times more likely to be held in a district court civil case than in a county court civil case, when one is available, and when a trial is actually held it is about 30 times more likely to be to a jury in a district court civil case than in a county court civil case.

There are no publicly available statistics on the sub-types of civil cases that lead to bench trials and jury trials respectively in Colorado's state courts.  But, national studies of trials in general jurisdiction courts (like Colorado's District Courts) in the 75 largest major metropolitan areas have found that about 75% of civil jury trials involve personal injury and wrongful death cases.  There were 4,414 such cases filed in Colorado's District Courts in 2014, and if Colorado is typical, about 198 of the civil jury trials conducted in Colorado each year are personal injury and wrongful death cases (implying that about 1 in 22 such cases is resolved through a jury trial).  My intuition is that percentage of personal injury and wrongful death cases that are resolved by jury trials relative to the percentage resolved in bench trials is somewhere in the middle of the range of 75%-95%.  About 98% of Colorado's criminal felony trials are jury trials, and I suspect that the percentage in personal injury and wrongful death cases is at least a little bit lower than that, but I don't know how much lower.

The remaining 66 civil jury trials in Colorado's state courts of general jurisdiction involve the other roughly 13,945 district court civil cases in which there is a right to a jury trial.  Thus, roughly one in 211 such cases are resolved with civil jury trials.  These cases are about 23 times more likely than county court civil cases to be resolved with a jury trial, but about 9 times less likely to be resolved through a jury trial than a personal injury case. There is insufficient data available to me to determine exactly the relative preference for jury and bench trials in personal injury and wrongful death cases as opposed to other cases, but at least 21% of district court civil cases that go to trial and are not personal injury or wrongful death cases are resolved through jury trials.  Thus, the relative preference for jury trials over bench trials is at least 12 times as great in these cases as it is in county court civil cases.

For example, in 2014 in Colorado's state courts, 97,728 civil cases were terminated and there were 264 civil jury trials (both of these statistics exclude quasi-criminal termination of parental rights cases and will contests).  By comparison, there were 244 district court civil bench trials.  But, the caseload figure is misleading for these purposes.  In fact, the disparity is really greater, because a jury may be demanded in almost every county court civil case, while this is not true in some kinds of district court civil cases that collectively make up a significant share of the total civil docket (e.g. 61,345 "distaint warrants" (i.e. state tax lien registrations), 11,211 summary "Rule 120" hearings that are the equivalent of a criminal preliminary hearing in an otherwise private foreclosure of a deed of trust, 3,459 petitions to seal criminal records, 571 county or municipal court appeals, 569 foreign judgment registrations, 414 out of state subpoena requests, 403 declaratory judgment actions, 356 injunctive relief cases, 329 name change petitions, 286 petitions to seal criminal convictions, 189 writs of habeas corpus, 130 mechanic's lien foreclosures, 49 confirmations of arbitration awards, 47 special district petitions, and 11 protection orders).  Only something on the order of 18,359 district court civil cases are "suits at law" in which jury trials are available (the "on the order of" disclaimer reflects the fact that the statistical classification of a case isn't a perfect measure of when a jury trial is actually available under the rules of the Court, the real figure is probably slightly smaller).

Meanwhile, there was 132,170 civil cases terminated in county court (excluding 6,710 small claims court cases that were terminated, in which there is no right to a jury trial under state court rules and state law), but this total includes a combined 12,697 foreign judgment registrations and protection order cases, in which there is no right to a jury, and 37,606 eviction cases in which a jury is not available at the eviction stage even though a jury could demanded and seated in a subsequent hearing to determine money damages once the eviction decision was made in the case.  Conservatively excluding both of these categories of cases there are 81,867 county court civil cases in which jury trials are available for the most important decision in the case.  There were just 17 civil jury trials (both of which are typical over statistics over the last decade or so) with only 8 counties having any county court civil jury trials.  By comparison, the were 976 county court bench trials in civil cases.

The county court statistics above are for 63 of Colorado's 64 counties, but excludes Denver County Court which is treated as a municipal court for statistical purposes.  Assuming the same mix of civil cases as found statewide, there are about 19,000 civil cases where there is a meaningful jury trial right in Denver each year, about 20% of the statewide total.  There were 525 bench trials and 226 jury trials for the court as a whole in Denver in 2014, compared to 3218 bench trials and 1286 jury trials total in the rest of the state in 2014, but there is no breakdown of trials by case type, for example, between criminal and civil cases, in its annual report.  Extrapolating based on the percentage of overall bench trials that a civil statewide, you would expect about 296 civil bench trials a year in Denver, while extrapolating based on the number of civil cases eligible for jury trials in which there are county court civil bench trials statewide, you would expect about 244 civil bench trials a year in Denver.  Using the same approach to estimate the number of civil jury trials in Denver you would expect 3-4 civil jury trials a year in Denver, but small numbers are notorious for not following the law of averages strictly and there are many reasons why Denver might be expected to be atypical in one direction or the other.

Municipal courts in Colorado other than the Denver County Court which is a consolidated municipal and county court have essentially no jurisdiction to hear civil lawsuits (other than quasi-criminal ordinance enforcement cases).

The will contests are the only kind of cases other than civil cases that are not criminal or quasi-criminal, in which there is a right to a jury trial.  There were 11 in Colorado, statewide plus 3 in Denver Probate Court, not broken down by bench trials and jury trials, in 2010 out of 425 formal probate of a will cases (on top of 5,600 informal probate of a will cases) and probably a minority of those fourteen will contests were jury trials.

The other court in Colorado that handles civil cases and sometimes conducts jury trials is the U.S. District Court for the District of Colorado.

Nationally, all of the U.S. District Courts combined conducted 943 bench trials and 2,157 jury trials in 2014.  The various kinds of civil rights and employment cases* produced 274 bench trials and 1,277 jury trials and there were 129 personal injury bench trials and 307 personal injury jury trials tried in federal court.  These two categories of cases accounted for roughly 44% of civil bench trials and 75% of civil jury trials in the federal district courts.  There were 206,616 cases terminated in U.S. District Courts nationwide in 2014, of which some involved a meaningful potential for a jury trial and others did not.

The District of Colorado has about 0.8% of the nation total raw civil caseload of all U.S. District Courts combined.

* A large share of all civil rights cases brought in the federal courts involve alleged discrimination on the basis of race or gender in employment under federal civil rights statutes, so it is natural to lump civil rights employment cases together with non-employment civil rights cases and non-civil rights employment cases.  I have often made the argument that there is no particularly compelling federalism reason other than historical accident for vesting jurisdiction in the federal courts rather than state courts, in personal injury lawsuits between private parties who happen to reside in different states, and in most employment litigation between private parties, even if they live in the same state.  Shifting these cases to state courts would only modestly increase the case loads of the state courts (which already have concurrent jurisdiction over these cases in any event), but would dramatically reducing the case loads of the federal courts.  Admittedly, historically, there was legitimate concern that state court judges in state courts in the South would not faithfully apply federal civil rights statutes barring discrimination on the basis of race, while federal judges would do so more faithfully. But, federal judges themselves have a track record of grudgingly interpreting these laws, and in states where urban areas are often majority-minority, federal courts often have less favorable jury pools for these cases.

Back To State Constitutional Rights To Jury Trials

As the recent Atalese case in New Jersey illustrates, state constitution protections of the right to a trial by jury, which are common (adopted in imitation of the federal bill of rights) but not ubiquitous, frequently end up doing much more than supplying a rule of civil procedure for cases pending in state courts.  Indeed, few kinds of state constitutional rights have a history of a more varied and creative mix of applications.

For example, quite a few state constitutional provisions were utilized by state appellate courts to invalidate state tort reform legislation imposing caps on money damage awards on the theory that a constitutional right to a jury trial makes it the prerogative of the jury to determine the amount of money damages that may be awards in cases in which there is a right to a jury trial, which state legislatures may not invade. See, e.g., Lucas v. United States, 757 S.W.2d 687 (Tex. 1988); Condemarin v. University Hosp., 775 P.2d 348 (Utah 1989); Sofie v. Fibreboard Corp., 771 P.2d 711 (Wash. 1989), modified, 780 P.2d 260 (Wash. App. 1989).  Other state courts with a state constitutional right to a jury trial, however, have concluded that their right to a civil trial by jury is procedural and does not extend to the substantive scope of the remedy. Jordan v. Long Beach Community Hosp., 248 Cal. Rptr. 651 (Cal. App. 1988) (review denied and ordered not to be officially published (Sept. 15, 1988)); Yates v. Pollock, 239 Cal. Rptr. 383 (Cal. App. 1987).

There are a number of law review articles by prominent law professors arguing that the 7th Amendment and parallel state constitutional provisions should greatly limit the permissible grounds upon which summary judgment motions may be granted in civil cases.  But, efforts to make these arguments in the courts, and on court ruling making bodies, have failed in every or almost every instance.

A handful of other states have gone even further, holding that a state constitutional right to a jury trial protects not just the procedural right of parties in certain kinds of cases to have their cases decided in a particular kind of way, but also the substantive right to a civil remedy in the form of a legally recognized cause of action for the kinds of injuries where there was historically a right to enforce though a lawsuit in which a civil jury had the power to authorize relief.

But, as often as not, these case actually hinge on one of the thirty-four or so state constitutional provisions which, in imitation of Section 29 of the Magna Carta, guarantee not just a procedural right to a jury trial, but a substantive right to seek redress through the civil courts for any injury of the type described. A typical example of such a provision states that:

Every person within this state ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property or character[.] 

Vermont Constitution, Chapter I, Article 4. See generally The Right of Access to Civil Courts under State Constitutional Law: "An Impediment to Modern Reforms, or a Receptacle of Important Substantive and Procedural Rights.", 13 Rutgers L.J. 399 (1982) (a "Note" authored by a law student on the staff of the law review without public acknowledgement of authorship).

These two kinds of provisions, combined, have been considered to be potential barriers to tort reforms and civil procedure reforms, such as no fault liability regimes, for example, in worker's compensation systems, for car accidents or for medical malpractice cases.

These state constitutional provisions are generally of little use in the context of arbitration, because the Federal Arbitration Act, 9 U.S.C. Sec. 1, et seq., because Section 2 of the Act pre-empts state law, including state constitutions, in circumstances, are prohibits states from invalidating arbitration clauses in circumstances where the FAA applies (which it does to any transaction involving interstate or international commerce, which is that term that has expansive scope, and to any maritime transaction).

But, Section 2 of the FAA does have an exception in cases where the arbitration clause would be invalid under generally applicable principles of state contract law such as those invoked by the New Jersey Supreme Court in Atalese.  There, while the state constitution colored how those state law contract principles were applied to a contract containing an arbitration clause, the contract law principles applied were sufficiently neutral and universally applicable to all contracts, that the decision to invalidate the arbitration clause escaped FAA preemption.

Reality Bites

* The public defender's system in one Georgia judicial circuit was so profoundly broken that one man sat in jail for 110 days for a crime for which he had already been convicted and served his sentence. He was pressured to plea guilty to the offense a second time and receive ten years in prison for it.  There is no indication that he has received any compensation for his obviously and patently wrongful incarceration secured through a violation of his constitutional rights as a matter of the official policy and procedure of governmental bodies in question.

The officials in charge of making the system work and operating the local judicial system, including the judges, willfully defy the constitution in myriad way and have worked very hard to prevent it from having any effect in their four countries.  Alas, this situation is Georgia isn't that unusual elsewhere in the country.  Turning court rulings into adequate funding for public defenders isn't something that happens automatically or naturally, although funding for incarceration seems to have no such problem.  Kudos to the Southern Poverty Law Center for its tireless and never ending work to secure justice in a part of the country that isn't interested in it.

This situation comes close to the definition of evil, which is pretty much par for the course in rural Georgia (FWIW, I was born in Atlanta and lived there until I was six).

UPDATED AUGUST 14, 2015: * In a related point, the bail system is deeply broken and coerces the poor. END UPDATE

* Kevin Drum artfully makes the case that the Donald Trump's supporters are most motivated because they are angry white men (and more than a few women cut from the same cloth) sick of political correctness.

[F]or most people their real issue with it is that it forbids them from delivering casual slurs—that everyone knows are true—about blacks or women or Muslims or gays or whatever. They've been doing it all their lives, and they think it's ridiculous that they have to watch themselves in public lest someone think they're racists. Trump appeals to that sentiment. . . . At a gut level . . . they think "normal" American culture is under attack. . . . no one is even allowed to tell the truth about what this really means. Mexicans come pouring across the border but you get in trouble for just plainly saying what everyone knows: most of them are criminals and should be sent back. Muslims blow up the World Trade Center, but woe betide anyone who makes the common sense observation that we should keep a close eye on mosques because most of them are terrorist breeding grounds. Blacks commit violent crimes at higher levels than whites, but we all have to pretend this is only because whites have been keeping them down for so long. And if you make a harmless joke about some woman having a great body? It's a compliment! But the feminazis will be all over you like bees in a hive.

They want carte blanche to act in ways that they think makes common sense, even if that common sense is mostly dead wrong. About a quarter of likely Republican voters support Trump, and Kevin Drum has accurately captured one of the predominant reasons why this is so.  Plenty of Republicans who ultimately support other candidates feel the same way.  The fact that you are reasonably affluent doesn't mean that you are well informed.

Is it possible to change the hearts and minds of these people?  I'd like to think so, but I'm not sure what means would be most effective or how such a campaign could be financed.  Until we do, however, we are going to be stuck with powerful regressive cultural forces playing a powerful role in our political system.

* In the last couple of days Colorado has had floods that sent cars floating down the streets in Colorado Springs, snow at Eisenhower Tunnel, a tornado in metropolitan Denver, and three million gallons of toxic mine waste loaded with heavy metals flowing down the Animas River into Durango and beyond.  We even had a wildfire triggered by recreational target shooting.  So far, however, we haven't had any major earthquakes or volcanoes, so that's something.

Remembering Arne Blomquist

Arne and Mary Blomquist on a happier day, quite a long time ago (via Kathy Blomquist).

His daughter, Kathy Blomquist, announced that my uncle, Arne Blomquist, died yesterday, an old man, although death always comes too soon.

My mother, who died of breast cancer shortly after retiring, and my Aunt Kay, who died in middle age of M.S. that manifested itself while she was in college, have predeceased him, as did his sister's husband, my uncle Dale, who also had a prolonged and difficult struggle in his final days. Arne is survived by his wife, Mary, his sister Rose, his brother Roger and his brother's wife Trish, his brother-in-law, my father, and his two daughters, Kathy and Chris, as well as nieces, nephews, other relatives on his wife's side whom I don't know, and a lifetime of friends, mostly in the Upper Peninsula of Michigan, in the Twin Cities of Minnesota, and in Tanzania.

It would be wrong to say he was my "favorite uncle", for I have loved all of my uncles in their own ways. But, of my four uncles and five aunts, he was the one most similar to me who I understood best. Like my late mother, who was his sister, he was vigorously engaged in the world of ideas and cared greatly about the larger world beyond his own personal experience.

To a greater extent than any of his siblings (not unlike my father who grew up in similar circumstances in rural Ohio but then moved on to academia), he fully acclimated into cosmopolitan big city life in the larger world beyond his rural home as if he had been born to it. But, he was never a stranger to the place he grew up and always retained strong ties there.

He was an independent critical thinker who had a tendency to dominate discussions through intelligence, knowledge and force of will. It rankled him just a little sometimes, that my father was older than him, after he had spent his life being the eldest in a large family and the leaders of the Blomquist children, a position in which my lower key father never really challenged him in truth. He didn't worry about offending people he thought were in the wrong, which isn't to say that he lacked social skills. Far from it. He could and did lead people to get things done.

He was the oldest of the two boys and three girls who lived to adulthood in the family, all children of a lumber jack without a college education whose home grown potatoes and vegetables, as well as his fishing and hunting, made the difference between having enough food and not for the family. His father had had an arranged marriage, but Arne and all of the other children married their own chosen mates for love. They grew up in a small house his father helped build himself from a mail order catalog design, with an outhouse, clothes that were dried on a clothesline in the back yard, a washing machine was a hand cranked wringer, and a party line rotary phone.  The house's roof was (and still is) aligned with the North Star.

They were grandchildren of poor Swede-Finn immigrants who picked up only bits and pieces of the Swedish language used at home and at church (mostly expletives, aphorisms, and religious phrases, along with a few names of simple household things). But, he and the other children were, at least in adulthood, in contact with many our Finnish relatives (the Finns are great genealogists, our family has roughly 100,000 relatives documented in privately prepared Finnish genealogies, a substantial share of the entire nation's population and an even larger share of the particular region from which our ancestors emigrated; one is even a Finnish Knight in honor of his life saving work overhauling Finland's water and sewer systems).

Despite tough economic circumstances, Felch in Dickenson County, where they lived, an hour from the nearest decent grocery store in Iron Mountain, has an idyllic character not unlike the fictional town of Lake Woebegone in Garrison Keillor's Prairie Home Companion radio show that I always related to as a child. Life seemed to revolve around coffee cake and weak brewed coffee after services at the local Swedish Lutheran church, the omnipresent forests of firs and birches that surrounded their homes and the lonely rural roads, and hunting stories. So far as I can tell, none of the family has ever perceived themselves as disadvantaged, even though they undoubtedly wanted for a great deal in their youth.

Still, four of the children, including Arne, graduated from college. Rose married young, stayed close to home and had four children in the world she grew up in where she still lives today, where her family has provided Felch and Dickenson County with pillars of the local community.

Arne made a comfortable living for himself and his family in an engineering business and then lost a great deal in a turn of business misfortune. He and his wife Mary paused to reflect and decide what they wanted to do with his life.  Then, they did it, reviving the business and leading a group of committed Minnesotan Lutherans to establish Tanzania's first private university, which is affiliated with the Tanzanian branch of the Evangelical Lutheran Church in America (the mainline Lutheran denomination).  They found books and professors, guided the students to literally make the bricks with which they then built its buildings, and as much as anything, provided know how and leadership free of the corruption that infects most African bureaucracies. He was particularly proud of the way that the law faculty there created a source of lawyers independent of the government.  Christian churches are powerful across sub-Saharan Africa, we learned from him, because they mobilize communities to take positive action and improve their parishioner's lives.  During his time in Tanzania, he was a U.S. counsel, a position for which the main qualifications in this part of the world are a secure home to keep critical records about Americans and a stable familiarity with the community.  They built a grand cabin and Christmas tree farm in the UP to retire to in their old age, in substantial part with their own labor, the labor of their children and their children's partners, and other family. Then, they persevered when much of it was destroyed in a fire, so that it is now usable again.

His two daughters have displayed similar initiative. He tried to teach them to hunt, although neither was very excited about it. Time sent working for Habitat for Humanity gave them valuable skills. Kathy became an engineer, restored multiple houses with her life partner Mike, and until just recently  when her job was relocated, worked for a Japanese company selling technical equipment. Chris married her high school sweetheart, college best friend and co-adventurer in life, also restoring homes along the way. Chris and her husband now make a living running a non-profit they established in college. Arne wouldn't necessary have made or recommended some of the choices that his daughters made in life, but in the end, he respected their independence, their initiative and their prerogative to make their own decisions, so long as they carried them out purposefully and competently (which they did).

Arne suffered no fools, and understood what it took to make things happen and how the world worked in ways that most people only think they understand. He had a sharp wit until his psychologically agonizing final days when diseases of old age preyed upon this as well as his body over many years.  This was agony for those of us who loved him, especially Mary who always faithfully supported him and advocated for the best possible care for him sustaining him much longer, and much better in the quality of his life, than he would have managed otherwise.  We looked on helpless to prevent the inevitable, which finally arrived in full, yesterday.  The slow progression of the ailments was painful for all, but it has also left us mostly at peace with the inevitable now that it has arrived.

We value the lessons that he taught us over the years, as much by example as through formal instruction. He taught us that you can make your own fate and are not a prisoner of your circumstances. He taught us that ideas and the greater world matter and that you should play a part in shaping that world. He taught us that physical assets and money are inconsequential in importance relative to your own human capital. He taught us that much can be accomplished with hard work, resourcefulness, know how and clarity of purpose. He taught us that having purpose in life and engaging with the world makes your life meaningful and worth living. He taught us how to raise children to be independent, self-directed and effective, yet caring, themselves.

We will all miss him sorely.

This remembrance is prepared solely from my own recollection and memories of my own family's history, and if there are inaccuracies or this post causes any offense, I apologize. Any mistake or offense is my fault and is unintended.

Post-Debate GOP Presidential Race Polls

Post-Debate Poll (NBC) 

Trump 23% 

Cruz 13% 

Carson 11% 

Fiorina 8% 

Rubio 8% 

Bush 7% 

Walker 7%

Via a Facebook post and confirmed here.  Meanwhile another post-debate poll produces somewhat different results, with Bush polling stronger, and polling Cruz and Fiorina weaker:

Trump leads the Republican field with 32 percent of the vote, up 7 percentage points over last week’s Morning Consult tracking poll. Trump’s nearest GOP rival, former Florida Gov. Jeb Bush, clocked in at 11 percent.No other Republican contender reaches double digits – retired neurosurgeon Ben Carson sits in third place at 9 percent, followed by Wisconsin Gov. Scott Walker and Sen. Marco Rubio (Fla.) at 6 percent.

A Reuters-Ipsos poll with a dubious +/- 6.7% margin of error has Trump unchanged at 24%, followed by Bush at 12% (down 5%), and no other candidate with more than 8%.  The Reuters poll shows Fiorina leaping from 1% to 6% support.

Meanwhile, a post-debate poll of Iowa potential caucus-goers by Public Policy Polling found:

Trump taking 19 percent support in Iowa, the first-in-the-nation caucus state.  Wisconsin Governor Scott Walker and Ben Carson are tied for second place at 12 percent support each, followed by Jeb Bush at 11 percent, businesswoman Carly Fiorina at 10 percent and Texas Sen. Ted Cruz at 9 percent.

Overall, great news for Democrats, if true.  Republicans are currently doubling down on crazy and that isn't going to help them in the general election.

Quote of the Day

The Republican Presidential candidate debate held by Fox News in Ohio yesterday was mostly a game of hand grenade volleyball, as the "moderators" made every effort to bait the candidates to attack each other and offer intemperate answers.  But, there was one small moment of decency in the affair, which is the source of today's quote of the day.

At about 8:10 p.m., New Jersey Governor Chris Christie was asked if former Arkansas Governor Mike Huckabee is lying when he say that Social Security and Medicare can be saved without significant overhauls.  Christie replies:

He's not lying.  He's just wrong.

Like Colorado Pols from whom I obtained the report of the debate, I think it is a great line.*

One of the real foundations of civility in the practice of law, which applies equally well to politics and business, is to recognize that there is a difference between saying something that you do not believe to be true, and lying.

When you accuse someone of lying you are making an ad hominem attack directed at their character that poisons the well of any future communication or cooperation.  Sometimes, someone is so bad that it is appropriate to poison that well because you don't want to communicate or deal with someone like that.

But, usually, giving someone, particular a potential powerful ally in future dealings, the benefit of the doubt is the better course of action.  People like politicians, diplomats, businessmen and lawyers (professional negotiators all) frequently have repeat dealings with each other related to a wide variety of issues, both in the matter they are currently working together upon and in future completely unrelated matters.

So, crossing the line from giving the other side the benefit of the doubt and continuing to try to deal with someone in a civil matter to determining that the other person is an untrustworthy individual who should be shunned or dealt with through demands imposed by force or threat of force (physical or legal), is a grave one that should be taken only when absolutely necessary.

Also, assuming that someone is not lying is wise because in the worlds of politics, diplomacy, business and law, often someone who says something that seems obviously false to you, really isn't lying. When you are lying, you know that the statement you are making is false and you make it with the intent that someone else will be deceived by your statement.  In contrast, if you actually believe that what you are saying is not false, you are simply mistaken.

In real life, and in particular, in matters of government policies, it is not at all uncommon for people to have inaccurate but sincere beliefs that are deeply colored by cognitive biases, attitudes about which purported experts you trust.  Few people know enough about these policy issues, and nobody knows enough about all of these policy issues, to form their own independent opinions based upon the raw facts.  Everybody, even the people who look at the raw facts, receives expert opinions about which policy is right and often, more than one expert who superficially seem to both be qualified, provide contradictory advice for a whole host of reasons that go into the complicated process of analyzing complex questions like "Can Social Security and Medicare be saved without significant overhauls?"

Questions like these almost always themselves contain inherent ambiguities (what changes to the program count as "significant overhauls") and potentially false assumptions (Social Security and Medicare are broken in a way that will cause some serious but unstated consequence, unless they are "saved").  One of the key elements of analyzing policy is making sure that you are asking the right question and that the question is a valid one, and not just that you are giving the right answer to the question asked.

This is why, in defamation law and the law of fraud, the law recognizes that opinions are never inherently false, which recognizes, basically, the inherent complexity of how opinions (which most statements about policy matters amount to) are formed.

There are some narrow exceptions to this rule that are pertinent to accusations of lying in debates as well.   An opinion that you claim to hold, when you don't actually hold that opinion is false.  For example, if I said that I believed that my neighbor's German shepherd was cute and adorable, I would be lying.  It might be a "white lie" that is justified under the circumstances and couldn't easily be disproven, but it would still be a lie.  (I personally believe that dogs are for soup.)

Also, some statements in the form of opinions so strongly imply a factual basis, for instance, because they would be almost impossible to sincerely hold if a person had knowledge of certain facts, that the statement of opinion implies a statement about those facts which can be false.  If I say that it is my opinion that a company is financially sound, that statement might mean a multitude of things, but it is probably inconsistent to the extent that it would be a lie, with me having personal knowledge that the company had billions of dollars more of debt than assets, was far behind in paying all of its bills many of which had been referred to collections, and had just lost the contract that was to have provided two-thirds of its revenues for the next six months.

Finally, there are statements that are not meant to be taken literally which a reasonable listener should understand were not offered in that sense from context.  If an ordinary health person in the United States says in casual conversation that, "It would kill me to learn my son wasn't going to graduate on time.", the speaker is using a figure of speech, and not lying, even if he is actually certain that he would go on living if he learned that fact.

In sum, there are few more important lessons to learn than that someone can be wrong and say something that you believe to be untrue, without lying.  And, acknowledging that this is true can transform the way that you deal with other people for the better.

The fact that the sentiment and the speaker's attitudes about civility in political tactics, that I've just discussed in this fairly long blog post, can be summed up in a six word sentence delivered on the fly (albeit probably with long hours of preparation and coaching before hand), is what makes today's quote of the day so great.

It also enhanced my respect for Chris Christie whose candidacy was tarnished almost on day one from aspersions on his character arising from "Bridgegate".

* I couldn't have watched it live if I wanted to, because I don't have a television that receives cable television or broadcast television and don't subscribe to a screening service that provides it.

My 2016 Presidential Election Predictions (National)

The first Presidential debate of the 2016 election is tonight, so it is time to make my predictions:

* There is at least a 95% chance that the next President of the United States will be (from left to right politically), with relative percentage chance of winning approximately as shown:

Bernie Sanders (D) (20%) - liberal Democrat (elected as a Socialist to at large Vermont House seat starting in 1990 election followed by U.S. Senate in 2006 election for a total of 26 years in Congress when his current term ends) focus on economic needs of less affluent, currently Senator from Vermont elected with broad bipartisan majorities.  Very ethical, not owned by special interests, ubiquitous and savvy social media presence among liberals, articulate master of the sound bite, and generally a decent guy.  May be perceived as too "soft" to run the nation including the military.  The Democrat party base is broadly supportive of his policies once you get over the "Socialist" label (which he has consistently owned since at least his college days), and may play well to lower income moderates, but he is the anathema of conservatives on most issues.  Known for his consistency on policy issues relative to most candidates.

Hillary Clinton (D) (40%) - center leaning Democrat, currently Senator from New York, formerly U.S. Secretary of State in the Obama Administration, First Lady of Bill Clinton, and high powered partner in Little Rock, Arkansas law firm.  Many Democrats would like to vote for a woman for President, even if they don't love her somewhat unreliable Democratic party voting record leaving her weak positives in her own party.  But, she benefits from the fear that Sanders would be viewed by national audiences as too liberal.  She is not the most likable person as politicians go with strong negatives with non-Democrats in particular that mostly reflect her personality and perceived personal flaws rather than her policies and long standing GOP efforts to create controversy around her, which could hurt with independent voters who decide based upon perceived personality rather than policy.  The latest controversies for her involve e-mail disclosures, a security breach at a Libyan embassy which it isn't obvious she could have foreseen or prevented, and fund raising for a family international affairs oriented non-profit that has received big donations for foreign countries.  She has struggled to articulate a clear message setting forth her agenda, as opposed to responding to events as they unfold.  Conventional wisdom is that her policies would be similar to those of Bill Clinton's administration often summed up as "triangulation" between right wing and left wing political movements.

Mike Huckabee (R) (2%) - conservative leaning populist (social conservative, but more supportive of economic needs of the poor and criminal justice reform than many GOP candidates due to some commitment to social justice themes in New Testament) former Governor of Arkansas, Evangelical Christian minister and former 2008 Presidential candidate.  Despite his previous run for President, he has less national name recognition and suffers from the "what have you done for me lately" problem of anyone who has been out of office for a while.  The weakest of the viable candidates.  His relatively moderation strengthens his position with independents, and for a white Southern Republican he is less overtly racist and xenophobic than most.

Jeb Bush (R) (22%) - middle of Republican base politically (which is still quite conservative in these days of realignment in the South), he is fluent in Spanish, the former Governor of Florida (a swing state), and had a career in finance greased by family connections before joining the political dynasty of which he is a part.  He is less stupid than his brother, President and former Governor of Texas George W. Bush,  and is about on a par with his father President George H.W. Bush.  But, while a relatively nice guy as Republican politicians go, he is prone to saying stupid things that unintentionally excite controversy.    In the top three in national, New Hampshire, Iowa, and South Carolina polls.  Well funded from PAC donors.  While he is not the front runner in current national polls, he is the man to beat in the race for the GOP Presidential nomination.  He met his Mexican born wife while studying abroad in Mexico while he was in high school, and he converted to Roman Catholicism in 1995.  He spent time in international banking in Latin America.

Donald Trump (R or I) (6%) - Trump could run as an independent if his partisan run fails although he would be unlikely to be successfully elected by that route - a moderate Republican (former Democrat) multi-billionaire from New York City to immigrant parents, who has never held elective office or run a political campaign. He is very pro-rich in his economic policies and positioned as the voice of the xenophobic and racist wing of the party due to recent public comments, a loud mouthed rube who is a well known celebrity from his business ventures (many of which went bankrupt), get rich quick books and television reality show hosting.  Moderates inclined to support Trump can reassure themselves that his conservative statements while he is chasing the nomination are not in line with more moderate and liberal political views that he has expressed in the past.  His is in first place in the national polls, in the top three in New Hampshire, Iowa and South Carolina, and has an effectively unlimited ability to self-fund.  He is not loved by the GOP establishment who see him as a fickle loose cannon who is not committed to the party.  Even if Trump flames out in the primary and caucus process, he has squeezed a lot of second and third tier GOP candidates out of the viable running in the meantime.

Scott Walker (R) (9%) - mild mannered but hard assed very conservative Republican Governor of Wisconsin since the 2010 election (a fairly "purple" Midwestern state), who is known for anti-union, anti-public employee stance, less prone to unintentional foot in mouth moments.  Controversy over his anti-union and other hard line conservative policy stances that he has successfully implemented has recently earned him national recognition.  Reasonably well funded and the strongest very conservative candidate in the race.  Polls well nationally among Republican voters and in early primary campaign states.  He spent ten years as a state legislator and eight as a county commissioner in Wisconsin before running for Governor and hails from Colorado Springs, Colorado.  Walker is a "surfer" in this campaign, paddling around in the water and waiting for a conservative wave of public opinion that he can ride to victory because he isn't influential enough and doesn't have enough money to create one himself.  No other strongly conservative candidate in the running is polling anywhere near Walker or raising significantly more money than he has raised.  Walker is a college dropout from a little known college who spent more time in student government than on his studies as evidenced by his mediocre GPA.

* All of the candidates are white and late middle aged to young senior citizen and running at this stage for a nomination of one of the two major political parties.  None have stronger ties to the Western U.S. than Scott Walker who grew up there and moved to the Midwest where he lived as an adult.  Bernie Sanders is Jewish and the rest of the viable candidates were raised as Protestant Christians, although Jeb Bush converted to Roman Catholicism, which is his wife's religion.

* None of the GOP leading candidates have experience in federal public offices of any kind.

* None of the leading GOP candidates have any military service. Only Jeb Bush, as a foreign language speaker with an undergraduate major in Latin American studies, an immigrant wife and international banking experience, can claim any expertise in foreign policy and that is purely non-military.  In contrast, the Democratic candidates gained foreign policy and military policy experience while serving in Congress, and in Hillary Clinton's case, while serving as U.S. Secretary of State during which she organized an international campaign of airstrikes in support of pro-democracy forces in Libya.  Lack of expertise may help explain the domestic economic policy focus of the GOP primary so far.

* There is no point in even trying to learn anything about the other 12 GOP candidates who have no realistic chance of success.  The strongest of them, Marco Rubio, is a Latino mirror of Jeb Bush who polls less strongly across the board, has less of a national reputation and no political dynasty, raises less money and isn't that different on policy issues or in likely general and primary election base, either demographically or geographically.  Jeb Bush will probably pick up the lion's share of Rubio.'s supporters when Rubio drops out of the race.

* A crash in support for one of these candidates in favor of their same party competitors by the end of February, is more likely than a surge in support for someone not on the list at this point that brings that candidate into the viable candidacy odds of prevailing.

* In the Democratic primary, Clinton has about a 65% chance of winning the nomination and Sanders has about a 34% chance.  The odds of anyone else winning the Democratic primary is about 1%.  The most likely scenario in which that would happen would be the premature death of Hillary Clinton very early in primary season or before the first primary.

* In the Republican primary, Jeb Bush is most likely to win (55%), followed by Scott Walker (23%), followed by Donald Trump (14%), followed by Mike Huckabee (5%) (with percentage chance of winning shown).  The combined odds of any of the other 12 GOP Presidential candidates winning the Republican primary is about 2% (Rubio is the front runner of the also rans, but not decisively enough to give him a 1% chance of winning the nomination).  The odds of someone not currently in the GOP race winning the Republican race is about 1%.

* The Democratic primary will probably be resolved by late March or sometime in April in 2016.

* The Republican primary will still have at least three serious candidates left at the end of May 2016, and won't be resolved to a near certain outcome until June or July, 2016.

* There is a roughly 1% chance that whoever becomes the major party nominee and wins the election, that a Vice Presidential candidate not on this list will end up being President.

* All other possibilities combined for the next President of the United States have a less than 0.5% probability.  This includes third party candidates other than Donald Trump (if he drops out of the GOP primary but runs anyway), and succession to someone other than the person nominated as President or as Vice-President, due to two post-nomination, pre-inauguration deaths, and the possibility of a coup or significantly postponed election.

* There is roughly a 37% chance of a Clinton v. Bush race in 2016, which is the most likely possibility.  There is a roughly 18% chance of a Sanders v. Bush race in 2016.  There is roughly a 17% chance of a Clinton v. Walker race in 2016.  There is roughly an 8% chance of a Sanders v. Walker race in 2016.  There is a roughly 8 out of 9 chance that there will be one of these four possible general election line ups in the 2016 Presidential election.

* In a Clinton v. Bush race, the odds of Clinton winning are about 60%.
* In a Sanders v. Bush race, the odds of Sanders winning are about 55%.
* In a Clinton v. Walker race, the odds of Clinton winning are about 65%.
* In a Sanders v. Walker race, the odds of Sanders winning are about 60%.
* In a Clinton v. Trump race, the odds of Clinton winning are about 50%.
* In a Sanders v. Trump race, the odds of Sanders winning are about 55%.
* In a Clinton v. Huckabee race, the odds of Clinton winning are about 60%.
* In a Sanders v. Huckabee race, the odds of Sanders winning are about 60%.
* In a three way race involving Clinton (D) v. Walker (R) or Bush (R) v. Trump (I), the odds of Clinton winning are about 75%
* In a three way race involving Sanders (D) v. Walker (R) or Bush (R) v. Trump (I), the odds of Sanders winning are about 70%.
* The overall odds of a Democrat winning the Presidential election are about 60%.

* If Bernie Sanders wins the election, the odds that the Democrats will also control the U.S. House and U.S. Senate is about 65%.  If Clinton wins the election, the odds that the Democrats will also control the U.S. House and U.S. Senate is about 55%.

* If a Republican wins the election, the odds that Republicans will also control the U.S. House and U.S. Senate is about 65% for a candidate other than Scott Walker and about 70% for Scott Walker.

* The odds of a Democrat winning the Presidency and controlling majorities in both houses of Congress is about 35%. The odds of a Republican winning the Presidency and controlling majorities in both houses of Congress is about 26%.  Thus, there is a roughly 61% chance of a new President having a window during which he or she controls both Congress and the Presidency, which is particularly important now that the filibuster in the U.S. Senate has been weakened.

* The odds of a Democrat winning the Presidency but not controlling majorities in both houses of Congress is about 24%.  The odds of a Republican winning the Presidency but not controlling majorities in both houses of Congress is about 15%.  Thus, the probability of divided government from the outset after the 2016 election is about 39% and rises after the 2018 midterm elections which tend to go against the party of the incumbent President.

* There is roughly at 8% chance of a race too close to call on election night.  This is more likely if Sanders is the Democratic nominee and is more likely if Scott Walker is not the GOP nominee.  If it is a close race, there is probably at least a 25% chance that Colorado will be one of the make or break states that is still in play on election night.

* I am not making state by state general election predictions at this point, although the general election favorites in each state are pretty obvious for at least 35 or so states.

* State by state primary/caucus results are too close to call, but will be dominated by the front runners listed above.

* The least predictable outcome is the name of the Vice Presidential nominee, which I will not attempt to predict.  This will most likely be a Presidential candidate of the same party who does not win the nomination, but the odds of someone chosen from that group are only about 55%.  The odds that a Vice Presidential candidate will be announced before the national convention is about 55% in each of the respective major parties.

All percentages in this post are rounded to the nearest percentage point so as not to convey an impression of spurious accuracy, at the cost that some totals may not add up to 100% due to rounding errors.

ANALYSIS

* These predictions are my best effort at hard headed, as accurate as possible, actual probabilities and are not consciously colored by my preferences.  My first preference is for Bernie Sanders, and my second is for Hillary Clinton.  There is no primary, caucus or general election where I will have to go further down my preference list to vote for a candidate who is on the ballot.  A Clinton-Sanders ticket would be preferable to lots of other choices that Clinton could make for a VP and would heal any wounds from the primary process if she won.

* The field is effectively closed right now, fifteen months before the election, a year before the major party national conventions ratify the major party nominees, and six months before a single vote is cast in a primary or partisan caucus.  There are four Democrats and sixteen Republicans running at this point, of which two Democrats and about four of the Republicans have viable candidacies.  The leading candidate in each party belongs to a political dynasty that has previously held the Presidency.
Seriously, if I read the paper every day and log into CNN now and then and use Facebook now and then and I don't even know that two of the purported Democratic candidates, Martin O'Malley and Jim Webb (a U.S. Senator from Virginia who served only one term and then didn't run again who was previously a soldier) are running, and don't even know who Martin O'Malley is period (he's a former Maryland Governor), you are not a serious candidate.  You have to know how to run a high profile national campaign that generates lots of name recognition outside your home area in order to credibly run for president.

* The cut of the pool of potential Presidential candidates is steeper now than at any other point in the process.  We've gone from millions of people who are legally qualified to run, and scores of potentially viable candidates, to eighteen people of whom only about six have a fighting chance.  Realistically, if there were some major change in circumstances it would be possible for someone new to enter the ring for another four months or so, but that would have to be a come from behind, late started effort.

* After a brief sojourn into the unlimited possibility zone, we are once again back in "choice of evils" land, and the "choice of evils" impulse will only get stronger as the respective Democratic and Republican party fields narrow.

* While the Democratic field is small, it fairly reflects pretty much the entire range of political opinion, if not personal style and experience, found in the Democratic party these days.  Sanders satisfies labor, social liberals and economic liberals including the non-Christian left, and is probably a closer fit on the issues to at least 70% of Democrats in elected office.  There is not a non-white candidate in the Democratic party nomination this time around, although the fact that the Democrats are just concluding a two term Presidency by an African-American man who is the child of an immigrant father appeases those diversity concerns for a singular office where one the current Democratic candidates is a woman, and both candidates are right on the issues compared to their Republican opponents.  The face that both Bill Clinton and Barack Obama were raised by single parents also provides some assurances to minority voters that the Democratic party isn't too insulated from their world of experience.

* The full GOP field has been attributed to a combination of a strong Democratic opponent, a lack of an incumbent or clear king maker on the Republican side, the wide range of discontents of Republicans looking for change, and the need for plausible candidates in the U.S. Senate and U.S. House to hold the seats they have in Congress for a would be Republican candidate that has prevented a "clear the decks" U.S. Senator from intimidating other Republicans from running (as well as to a lack of Congressional level accomplishment).  Particularly notable is how weak the pool of libertarian leaning GOP candidates, led by Rand Paul is doing in the polls of likely GOP voters and fund raising for what is a fairly substantial wing of the Republican party.  Many of the member of the current 16 candidate field will probably be gone before the first votes are cast in the GOP nomination race.

* Less than a year from today, there will be one Democratic nominee and one Republican nominee, and there is an outside chance that an independent will run, and either the Democratic nominee or the Republican nominee will win in the general election fifteen months from now.  In general, Presidential races, while having higher public participation than any other political race in the county, do not offer all that many choices to voters when you get right down to it.

* All six leading candidates are so far running predominantly on economic issues, rather than social issues or foreign policy.

* The literature supports the conclusion that the details of how campaigns are waged prior to a Presidential election is usually pretty unimportant to the final result that is produced, after controlling for the status quo parties in political control, the state of the economy, and campaign fundraising success prior to the commencement of the primaries in February.  Vice Presidential picks are also largely irrelevant to the outcome.  But, 9-11, Great Depression, or World War class historical developments can be game changing.  The literature also suggests that it is much harder to win an election when running for a party nomination from the party's ideological extremes.

* No one has ever been elected President without previously serving as President, Vice President, U.S. Senator, cabinet member, state governor, or as top general in the armed forces.  Thus, there  is no direct precedent for a successful Trump candidacy straight to the Presidency, although there have been credible campaigns (such as the third-party campaign of Ross Perot, seats of the U.S. House and U.S. Senate, and the Governorship of California) that have been won by celebrities or first ladies without prior political experience, and there is no logical reason that this year couldn't change that precedent.

* The case that Clinton is more likely to win an election than Sanders isn't obviously correct given recent polling, although my estimates reflect conventional wisdom on the subject.

OFF TOPIC:  Windows 10 has updated once already in a decent sized update, even though it is brand shiny and new.  Not sure what to make of that.  No problems with Windows 10 so far (and it is at least better than my old Windows 8).

Reforming Absolute Immunity For Prosecutors and Judges

Background on Absolute Immunity

In general, criminal prosecutors and judges have absolute immunity from liability for acts conducted in the furtherance of their judicial system functions.  Normally, if you feel that you have been harmed by the conduct of a prosecutor or judge in the judicial process, you appeal their rulings or collaterally attack their judgment in state or federal court (e.g. habeas corpus petitions in federal court).  Note, however, that a prosecutor who acts in a non-judicial capacity, for example as part of a investigation of a crime, has only qualified immunity from liability just like other law enforcement officers for that conduct.

There is good reason for this immunity.  Both criminal prosecutors and judges are routinely grieved for alleged ethical violations by dissatisfied litigants in complaints that are almost never sustained following an investigation (usually because the complaints are "appellate in nature"), and only 1-2% of so of habeas corpus petitions (and prisoner's petitions generally) are found to have merit.

On the other hand, there are instances in which serious misconduct by prosecutors and judges, in blatant disregard for their legal duties, results in serious harm to litigants that is not easily remedied through appeals of a conviction.

Misconduct by Prosecutors

In the case of prosecutors, the most common issue is that prosecutors fail to disclose exculpatory evidence that they are constitutionally required to turn over to defense attorneys under the U.S. Supreme Court's Brady decision resulting in wrongful convictions (which are defended beyond all reason once the mistake is discovered about half the time).

While this is an ethical violation for prosecutors, in addition to a violation of a clearly established constitutional right, the proportion of cases where a Brady violation is found to have occurred in connection by an effort to vacate a criminal conviction that result in attorney regulation officials commencing cases against the prosecutors who violated the constitution in the case resulting in the wrongful incarceration is only about 1 in 100 in California where a rigorous study was conducted. It is a striking example of the capture of an agency by the people who are supposed to be regulated by it. The rate of adjudicated misconduct by prosecutors in California in that same year was roughly 1 per 500,000 people per year.  About 80% of cases where misconduct by a prosecutor is determined to have occurred, however, are not found to be sufficient grounds to overturn a conviction, under the harmless error doctrine. or on procedural grounds like failure to preserve an issue for appeal. Damages from misconduct by a prosecutor will typically be nominal where a court determining that such a violation took place still finds that the sentence should stand, but will be very substantial in cases where the conviction is overturned.

So, one might expect about 10 such cases a year in Colorado, and one case of attorney discipline for misconduct by a prosecutor per decade in Colorado (which isn't too far from our actual experience), resulting in about 2 overturned convictions per year.  Colorado has about 540 prosecutors employed by federal and state governments in any given year, and entry level positions typically have quite high turnover.  So fewer then 2% of all prosecutors in the state would be exposed to any civil liability if suits were allowed in adjudicated cases of wrongdoing as described below, and less if a significant number of the violations are committed by repeat violators as if often the case in these situations. Only about 0.4% of prosecutors in any given year would face substantial civil liability under the proposed rule.

Probably the next most common type of misconduct by a prosecutor, which is closely related, is to offer evidence from a witness who is known to be lying on the stand and then to fail to correct the harm caused by those lies.

The U.S. Supreme Court took up such a case in 2009 on the question: "May a prosecutor be subject to civil prosecution when he allegedly violated the criminal defendants' substantial due process rights by fabricating evidence and then introducing it at trial against the defendants?", after the 8th Circuit Court of Appeals dismissed the claims of parties who were framed by a prosecutor who offered knowingly false testimony due to a prosecutor's absolute immunity.   But, the U.S. Supreme Court then dismissed the case without an opinion when the parties settled the case, a result that kept the 8th Circuit absolute immunity precedent in place, while presumably resulting in a significant monetary settlement for the wrongfully convicted plaintiffs.

Misconduct By Judges

In the case of judges, the most typical situation (which is much less common) is for a corruption investigation to result in a criminal prosecution of a judge or a judicial ethics investigation of a judge to find wrongdoing.  Not too infrequently, these cases involve improper sexual or financial relationships with prosecutors or other criminal justice system participants.

For example, Pennsylvania judge Mark A. Ciavarella Jr. took bribes totaling $2,600,000 from a juvenile private prison operator, in exchange for inappropriately convict more than 5,000 juveniles of delinquency and/or inappropriately sentence them to the private prison in a scheme that lasted six or seven years.

Many of those juveniles were still serving their sentences when he first pleaded guilty.  The judge refused to accept the plea in light of an unwillingness to admit guilt and a belief that the 87 month incarceration deal was too sweet, after which Ciavarella was convicted of state and federal crimes for which he was sentenced to 28 years in prison, together with co-conspirators including another judge from the county who was sentenced to 17 and a half years.  One of the individuals paying the bribe was sentenced to 18 months in prison (partially in a halfway house) while the other was sentenced to one year in prison.  Both bribe payers also made large donations to charities for children in lieu of restitution or civil liability.  A class action lawsuit brought by the victims of this misconduct has so far not produced a judgment or restitution for them.

While pleading guilty (a plea that was not accepted), Judge Ciavarella denied that he actually meted out inappropriate sentences, but statistically, the evidence is pretty strong:

For years, youth advocacy groups complained that Judge Ciavarella was unusually harsh. He sent a quarter of his juvenile defendants to detention centers from 2002 to 2006, compared with a state rate of 1 in 10. He also routinely ignored requests for leniency made by prosecutors and probation officers.

Thus, probably something like 60% of the people he sent to juvenile detention centers didn't belong there, and many of the rest probably got longer sentences than they deserved.  Several hundred juvenile sentences imposed by this judge were later vacated in a follow up investigation. In addition to excessive sentences, hundreds of juveniles were denied their constitutional right to counsel by Judge Ciavarella.

Or a West Virginia judge, Michael Thornsbury, who was sentenced to 50 months in federal prison for wrongfully incarcerating a man to prevent him from revealing that the county sheriff was illegally using prescription drugs not prescribed to him.

A Compromise Solution

There is a very sensible compromise between absolute immunity under current law, and the qualified immunity standard that applies to police officers, that would minimize litigation of groundless and frivolous cases against prosecutors and judges from their participation in the judicial process, while allowing the most glaring cases of injustice to give rise to civil liability.

Under the compromise solution, actions against judges and prosecutors currently barred by absolute immunity would continue to be barred except in cases where there was a final judicial determination that the official had violated a rule of professional ethics in connection with the Plaintiffs' case, or there was a final judicial determination in an underlying criminal action or collateral appeal of a criminal judgment, or in a separate criminal prosecution, that a constitutional right, ethical rule, or other legal duty of that official was committed by that official.

The cause of action would begin to accrue for statute of limitations purposes when the Plaintiff learned of, or should reasonably have discovered with reasonable diligence, the final judicial determination and all other elements of the cause of action.

Thus, individuals harmed by a judge taking bribes from a private prison operator, or having an affair with the prosecutor in a case where the individual was a party, or a prosecutor who violated someone's Brady rights, could be sued at that point for civil rights violations and any other applicable causes of action related to the misconduct by the public official.

The Argument For The Compromise Solution

Such violations by judges are very rare, and cases of prosecutors being judicially determined to have committed ethical violations, crimes or to have violated Brady in a post-conviction collateral attack on a judgment, are still quite rare, and would surely become more rare if violating these constitutional rights gave rise to any reasonable possibility of civil liability for prosecutors (many of whom would probably suddenly decide that it was a good time to institute an "open file" system for the lion's share of criminal prosecutions, implementing Brady institutionally in the way that most countries protect similar interests).

The earlier judicial determinations would often have collateral estoppel effect in the suit for civil liability, effectively establishing on day one a key element of the claim, which is the existence of wrongdoing in a case involving a Plaintiff.  Not all of these decisions would have collateral estoppel effect (e.g. if the prosecutor who violated constitutional rights didn't participate in the collateral attack on the judgment proceeding), and not all of these claims would prevail.  But, this rule would identify a group of cases in which there is a very high proportion of meritorious cases, for which civil lawsuits would be allowed, while continuing to screen 99.9%+ of all cases (overwhelmingly without merit, on average) in which the absolute immunity rule would continue to apply.

The new rule, would by definition, limit civil liability to pre-established "bad apples", whom defenders of the system constantly claim that they want to remove from the system.

It is also particularly glaring and injust for the legal system to openly and definitively after due process is had acknowledge that criminal laws, ethical rules or constitutional rights or other legal duties were violated, and yet still deny the victim of this wrongdoing any remedy, even then.

Prosecutors who have been proven to have secured wrongful convictions by violating the constitution, and judges whose corruption has been determined to have taken place in courts of law who have harmed litigants, should normatively have civil liability for their wrongdoing.  It isn't even a hard call from a moral perspective, and the systemic and bureaucratic need to screen non-meritorious cases can be easily addressed with this compromise rule.

Bad Cops At Large In Pennsylvania

Collingdale, Pennsylvania policeman Carl White whose conduct is recounted in a recent federal court opinion is yet another glaring example of what is profoundly wrong with police conduct in the United States.  Hat Tip to VC.

The Judge whose background is in civil litigation (Gerald McHugh, of the Eastern District for Pennsylvania, nominated by President Obama and confirmed and commissioned in March of 2014 by the U.S. Senate), recounts the record in the case:

On February 22, 2014, Defendant Officers Carl White and William Eckert went to Plaintiffs’ home in response to a call made by their next-door neighbor, who allegedly complained that Mr. Gaymon’s mother (a guest in their home at the time) had parked her car so that the front tire was on the curb in front of the neighbor’s house. Upon arriving, the Defendant officers confronted Plaintiffs as they were leaving for a family outing. According to the Complaint, Defendant White began yelling at them in an aggressive manner, asking who spit at their neighbor. 

Plaintiffs Mrs. and Mr. Gaymon explained that they had done nothing wrong, and that their neighbor falsely accused them of spitting at her. Defendant White then allegedly approached Mr. Gaymon in an antagonistic way, placing his face within inches of Mr. Gaymon’s face while yelling at him. 

Mrs. Gaymon, concerned about the officer’s aggressive conduct, took out her cell phone and began making a video recording. Officer White approached Mrs. Gaymon, at which point she moved inside her home, continuing to video White by either leaning around the storm door or through the window in the door. 

According to the Complaint, White ordered Mrs. Gaymon to stop videotaping him, and declared that her doing so violated Pennsylvania’s wiretap statute. Her husband and daughter, who were standing in front of their home, told White he was incorrect, and Mrs. Gaymon had a right to record. White told Mrs. Gaymon that if she did not stop taping him, he would enter her house, seize her phone, and arrest her. 

Mrs. Gaymon told White he was not permitted to enter her home. He walked up the stairs to the front entrance, but before entering, he grabbed her daughter Sanshuray, handcuffed her, placed her under arrest, and threatened to deploy his Taser against her. Officer Eckert then removed Sanshuray from the scene. 

Officer White is next alleged to have entered Plaintiffs’ home and ordered Mrs. Gaymon again to stop videotaping him. Mrs. and Mr. Gaymon reiterated that they did not consent to his entry, and he was not permitted to be in their home. Ignoring them, Defendant White allegedly grabbed Mrs. Gaymon, pushed her up against the wall, and held his Taser to her chest. 

At this time, Defendant Officers Eckert and others identified as “John Does” joined Officer White and placed Mrs. Gaymon under arrest. They removed Mrs. Gaymon from her home, placed her in a separate police vehicle from her daughter, and drove both women to the Collingdale Police Station.

Criminal disorderly conduct charges were summarily dismissed after the magistrate heard Office White's testimony, and this suit followed.

What is going on here is far deeper than just a hot headed police officer going off the handle.  It is a case of a police culture that is so disconnected from the law and reality that the two have almost no connection.

People like Carl White have no business wearing a badge or carrying a gun or taser. They are a disgrace to our country. In cases like these, civil liability is almost secondary to the relief that we as members of the general public really need, which is to permanently black list people like him from bearing arms in any capacity, or serving in a law enforcement or security position, public or private.  We don't need criminals with a badge like Carl White in any office of trust or honor in the United States.  His acts are an insidious form of a corruption that is too common and needs to stop now.

An across the board ban on gun possession to people found civilly liable for civil rights violations akin to the current prohibition on individuals with restraining orders against them, misdemeanor convictions, felony convictions, and people who have been involuntarily committed would be completely appropriate.

Law enforcement officers do not have to be the enemy.  But, in the United States, a lot of them are trying damn hard to be.  The reasonable, law abiding civilians need to be back in charge.  Shamelessly, the borough's website boasts that it had a "world-class police department" consisting of eight officers and one other employee, at least two of whom were involved in this incident.

The prosecutors who acceded to the officer's request to press disorderly conduct charges should also be sanctioned.  Civil liability is largely barred by absolute prosecutorial immunity, but that wouldn't preclude a federal criminal civil rights prosecution, state bar ethics sanctions, or disciplinary action from the DA such as being fired from their at will employment with that office (as a result of conduct that has imposed a significant financial burden on a local government in their jurisdiction).

This is the point at which the defense lawyers representing the defendants should tell his clients to dig deep into their pockets (or more realistically, that of the municipality that will almost surely indemnify them) and offer to settle the case promptly.

Alas, it is far more likely that they will instead double down and continue to try to defend indefensible conduct in a way that will run up the legal fees for both sides that the defendants will ultimately end up paying.  There is no way to put lipstick on this pig.

Denial of qualified immunity is usually an issue that can immediately be appealed, and I fully suspect that the issue will be, because fighting the merits is a lot less pleasant than trying to argue that legal cases are ambiguous if you twist them just right.  Then again, it wouldn't be a bad legal strategy for the defense to confess liability and leave the jury to a canned admission, two minutes of your client on the stand apologizing profusely, and a damages case that doesn't necessarily support a huge dollar award due to a lack of major physical injuries or property damage, particularly if they could find a favorable "cop friendly" jury in the larger jury pool of the federal courts than the state court, by making challenges to cause and pre-emptory challenges to anyone else.

One other key bit of factual background from a conservative blog reporting on the incident:

When you read about the citizens you will read they are a married man and wife, both college educated, living with their family. You will read they live in a home for many years, and they both of nice jobs. You will read they owned their own home. You will read they responded normally and attempted to de-escalate the situation. You will read they retreated from the police officers and were pursued. You will assume they are a normal white suburbia family (I did). Another reason you would assume they were white is the articles or the judges opinion ever even mention race or racism. In a way that is refreshing, and another reason we are passing this on to you. They just mention this storm trooper cops assaulting another American family in their home. Well they are not white. They are a black family and the cops that savaged them were white. 

Video is available at the blog link.

About Collingdale

Collingdale is a middle class (by income, working class to poor by housing values), recently majority black, first ring streetcar suburb of Philadelphia with 8,786 residents in the 2010 census, and less than one square mile of land, all of which is in Delaware County, Pennsylvania.

The proportionate growth in the black population of Collingdale is recent.  The borough was 92% white in 2000, was 56% white in 2010, and has since that time dropped below 50% white.  Almost all non-white individuals in the borough are black.  Sometime between 2000 and 2010 the neighborhood reached a "tipping point."

In 1998, the average housing price was a mere $61,000 and now just $82,000.  It is a fair guess that the city is historically white Catholic and only in the last two or three decades has seen itself go from being a working class white neighborhood, to a majority middle class black one (not that you would ever guess that from images posted on the borough website).

Eleven term Mayor Frank Kelly and police chief Robert Adams (both white as are all the police officers with photos on the municipality's website) have all sorts of power to throw the bad cops under the bus and disavow their actions to protect the city from the consequences of their conduct, but it is highly unlikely that he will do so.  All seven members of the borough council are white, as is the District Judge for the borough who is apparently related to a councilman, the borough constable (who is on the borough council), the borough manager (the equivalent of a city manager), and pretty much all of the other officials (some related to each other) with the exception of at least one black fireman.  As of 2007, the borough had no or almost no black owned businesses (out of 498 total).

If this all sounds a lot like Ferguson, Missouri, you are not imagining things.  The recently majority black small municipality has an almost entirely white slate of elected officials and city employees in a roster that shows heavy signs of nepotism.

Student Loans Should Be Dischargeable Some Day

A recent case out of the 7th Circuit illustrates the practical impossibility of discharging federal student loan debt.  The statute says that this debt can be wiped out in bankruptcy in cases of "undue hardship" but the court gloss on that legal standard is far more severe.

In this case, a 56 year old who ran up $260,000 of debt to earn an MBA and JD at marginal schools who then failed the bar exam twice, and is now unemployed, with a criminal record and lives with his elderly mother, sought to discharge his student loans. the Court acknowledges that "(1) [he] cannot maintain, based on current income and expenses, a “minimal” standard of living for himself and his dependents if forced to repay [his] loans[.]"

This wasn't enough.  To discharge the loans, it must also be true that: "(2) additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period; and (3) [he] made good faith efforts to repay the loans."

To satisfy the second prog who must demonstrate "the certainty of hopelessness."

The second prong of the Brunner test contemplates whether “additional circumstances exist indicating that [the inability to pay] is likely to persist for a significant portion of the repayment period … .” Roberson, 999 F.2d at 1135. We have noted that “the dischargeability of student loans should be based upon the certainty of hopelessness, not simply a present inability to fulfill financial commitment.” Id. at 1136 (citing In re Briscoe, 16 B.R. 128, 131 (Bankr. S.D.N.Y. 1981)). While in Krieger we noted that the “certainty of hopelessness” standard “sounds more restrictive than the statutory ‘undue hardship’ [standard]” we also noted that “a judge asked to apply a multi-factor standard interpreting an open-ended statute necessarily has latitude; the more vague the standard, the harder it is to find error in its application.” 713 F.3d at 885. 

In this case, the debtor had two expert witnesses lined up to show "the certainty of hopelessness", but was barred from using them at trial because he below his expert witness disclosure deadline.  The lender didn't show or even attempt to show how it was prejudiced by this late disclosure.

To satisfy the third prong, which can bar discharge of student loans even when the debtor cannot maintain a minimal standard of living and faces "the certainty of hopelessness" that the loan will ever be repaid, it is not sufficient to show that the debtor "made good faith efforts to repay the loans" by paying as much as he could on another loan incurred for his law school education at the same institution.

Instead, because he hadn't made many payments on this particular arbitrarily designated part of his student loan, he was barred as a matter of law from establishing that he made a good faith effort to repay the loans.

This judicial gloss on the undue hardship standard set forth by the statute goes far beyond the express statutory requirements for discharge of a student loan and makes it all put impossible to secure a discharge.

The law is the law.  But, Congress has the power to change it, and it does.  The economic reality is that higher education can impart substantial economic value to the student who can't part with that benefit and return it, even if the students wants to do so.

But, it is also the case that dubious institutions of higher education, including law schools, that grant degrees to people with no realistic chance of passing the bar exam, have conferred almost no value to the student at immense cost to that student, and the student isn't necessary in a great position to evaluate that risk which mediocre schools do not disclose or disclose only in a misleading manner.

By all means, people who get degrees and use those degrees to secure gainful livelihoods should pay for their loans.  But, someday, somehow, someone whose only mistake was to try to get a degree in a career that they later proved unable to pursue, ought to a get a break at some point.  Congress intended that when it created the undue hardship exception, but with now binding case law, that exception has essentially disappeared.

There is simply no way that failure to pay a debt that you are unable to maintain a minimal standard of living if you pay should count against you in a discharged proceeding.  Nor should a standard so daunting as "certainty of hopelessness" ever enter the legal lexicon.  A more appropriate standard would be that by a preponderance of the evidence it is unlikely that you will be able to pay a significant part of the loan in the foreseeable future, with the burden on the lender to show otherwise.

Quite frankly, neither of those prongs are really necessary.  The first prong, standing alone, adequate captures the statutory meaning of "undue hardship" and the other two should be abandoned by Congressional action.  The bar on the discharge of student loan debt should also expire at some point, perhaps 15 years if one earns a degree and any necessary professional credential to utilize it, and 5 years if one fails to earn the degree or is unable with reasonable diligence to attain the necessary professional credential to utilize it.

We would never punish a bad investment in physical or economic capital so harshly.  Education, which is the primary investment of most members of the middle class, shouldn't receive this kind of harsh treatment either.

Solitary Confinement

There are about 75,000 inmates in solitary confinement at the state and federal level combined in the United States, many for more than 10 years or even 20 years straight.

Commentary on the August 2015 Edition Of The Colorado Lawyer

The 2015 Legislative Session

This month is the annual review of the 2015 legislative session of the Colorado General Assembly, most of whose laws took effect July 1, 2015, and the remainder of which take effect this month.  It notes that 682 bills were introduced, 364 were signed into law, 3 became law without the Governor's signature (a symbolic step with no legal effect which on rare occasions is due to inadvertence), and 3 were vetoed.  Two of the bills vetoed limited use of red light cameras.  The other HB 1390 pertained to Consumer Credit Finance Charges and would have authorized higher interest rates for regulated low dollar consumer loans.

A few bills of note:
* Repeat DUI and DWAI offenses can give rise to a fourth degree felony, even if there is no accident or injury.  Previously, a DUI or DWAI offense was always a misdemeanor even if the offender had a myriad of prior offenses.
* The privilege to engage in marriage by proxy, rather than in person, was limited to members of the military, or civilian government employees or contractors, working in support of the military outside the state of Colorado.  Previously, any adult could use the provision.  The limitation from prompted by concerns about abuse and exploitation and potential sex trafficking.
* Crowdfunding for for profit ventures with an expectation of return is barred by state and federal securities laws.  Colorado passed an exemption to state securities laws allowing for crowdfunding from Colorado investors to Colorado businesses subject to state securities regulation requirements.
* Exemptions from creditors in bankruptcy and the court supervised debt collection process (including homestead dollar amounts) were increased in dollar amount for the first time since 2007.
* Procedures to prevent multiple voter registrations for one person were established (over bar association opposition).
* Mandatory reporting of abuse for adults with a disability was imposed.
* Protections were enacted for people who videotape police conduct.
* A bill clarifying Colorado "wind law" was passed.
* A number of bills only a lawyer could love related to trust administration, access to safe deposits after the owner's death, real estate title when a deed vests title in an entity other than a corporation before it is formed, who owns the attorney-client privilege of prior entities in entity mergers, background checks for related party foster care placements, juvenile delinquency alternative sentencing, electronic foreclosure sale procedures, title insurance regulation, and interstate child support rules were passed.  The statutory authority was granted to redirect the disposition of unclaimed property in attorney trust accounts from the State of Colorado to legal services for the poor.
 
The bar held up a number of Uniform Laws offered for consideration on various technical grounds, which did not pass as a result (the Uniform Voidable Transactions Act, the Uniform Fiduciary Access to Digital Assets Act, the Uniform Substitute Decision Making Documents Act).

Unwinding Mediated Settlements

What happens when a deal is reached in mediation and then the client doesn't want to sign the final documents?  Does it matter that new evidence or fraudulent statements made in mediation were later discovered?  An article reviews the relevant law and concludes by stating: "There are no easy solutions."

Conservator-Created Wills

Thomas Rodriguez and Brooke W. Brestel spell out the law and best practice of a Colorado law adopted in 2001 that allows a conservator to draft a will for a protected person.  C.R.S. 15-14-411.  I litigated one of the first such cases (it was resolved by a court approved settlement).

Together, they lay out the best practices in getting such a Will approved, and the circumstances under which a context at death is allowed (most obviously, under In re Estate of Romero, 126 P.3d 228 (Colo. App. 2005), a person subject to a conservatorship could execute a later valid will of his or her own).  It illustrates how someone who a close relationship to a protected person (such as a live in girlfriend) with relevant information about the protected person's wishes, can be excluded from the process and may have a difficult time revisited the issue at death even if that person is not formally barred from doing so if he or she did not receive notice of the original probate proceedings (which even a lawyer cannot confirm the existence of, let alone review documents in, without entering an appearance or contacting a court clerk where one is believed to be pending on the pretense of wanting to do so).

The initial impetus for enacting C.R.S. 15-14-411 was to fix technical defects in estate plans focused on tax planning that had become obsolete or ill-advised due to changes in the tax law or changes in the protected person's circumstances.  The use of C.R.S. 15-14-411 to change the status quo regarding the ultimately beneficial owners of an estate, such as the case illustrated in the article, has always been much more deeply problematic.  It is rare that one can be certain that it is a good thing to do so, it creates a new dreadfully expensive elective probate process in an conservatorship estate that is often at grave risk of seeing its funds depleted to litigate court proceedings, and as often as not, the status quo provides a reasonable approximation of justice.  I would favor amending C.R.S. 15-14-411 to disallow Conservator Drafted Wills except to reform an existing estate plan to reflect the same general donative intent in a manner that reflects new tax laws or changes in the protected person's circumstances.  Sometimes the dignity of a protected person is best honored by not trying to second guess the estate plan in place had the protected person died, rather than merely been incapacitated by a disability affecting that person's capacity.

Marijuana Regulation

There is a nice introduction to the legal ethics issues involved in representing someone in Colorado's state legalized, but illegal under federal law, marijuana regulation regime (in which I practice regularly).  In this area, as in the areas of limited representation (e.g. ghostwriting) and firm v. individual attorney representation of clients, the situation is made more complex by the secondary but independent professional regulation authority by the federal courts in addition to state regulation of attorneys.  The federal courts do not contain in their ethical rules an express exemption for marijuana practice found in state court ethical rules.

All of this is a reminder that many people could be exposed to federal prosecution for their de facto legalized conduct if there is a change in the political winds before the federal status of marijuana is reformed, for example, with a new President, despite widespread liberalization of medical marijuana and regulated legalization of recreational marijuana in the District of Columbia and several states in addition to Colorado.  President Obama's approach has allowed the groundswell of state and local support to play out in the laboratory of the states, but that could all be swept away in a single executive order - although people acting in reliance on official federal policy to respect marijuana laws might be spared the gotcha effect of a retroactive change in policy under certain legal doctrines.

Outrageous Conduct

What constitutes "outrageous conduct" in connection with the intentional infliction of emotional distress tort and some similar and related claims is for a jury or the judge in a bench trial to decide, subject to general boundaries imposed by judges.  Part I of a two part article summarizes 21 cases interpreting those standards decided since the last such review of Colorado case law in a 1999 article. In this highly fact specific area of tort law, one relies on general principles to at one's peril.

It is an area where many claims are brought, but few ultimately prevail, and often a means by which emotional distress and punitive damage claims can be presented when they would not have been available under other causes of action such as negligence, breach of contract, and breach of the duty of good faith and fair dealing in connection with a contract (other than an insurance contract which receives special treatment).

How To Draft A Bad Contract

A breezy article sets forth 25 bad contract drafting issues, although it is often a bit cocksure, failing to distinguish between stylistic issues that don't make much difference, and serious drafting oversights.  As is the fashion, it favors contracts that are written in "plain English" and abandon traditional formalities of presentation (e.g. favoring omitting "Whereas" from recitals of fact in the preface to a contract, and "Witnesseth" from signature blocks), and strongly favors brevity without much thought to why the alternative might not be so bad.

Some are obvious, but clearly important such as not including "inconsistent provisions" in your contract (which is easier to do than you might think when using form contracts).  I have my own contract writing checklist which includes some of their issues, while raising others that they do not (e.g. I favor establishing agreement in advance concerning the reasonableness of likely remedies).

Style is nice, but substance matters more, usually even if it makes a contract longer and harder to read.  Also, there is a failure to appreciate that one of the reasons contracts are drafted by lawyers is because the parties want something that seems legalizistic and has weight that rivals its importance.

Contracts that truly involve only two parties can often be to the point.  But, contracts that involve multiple parties (some of whom may not be signatories, such as regulatory agencies and taxing authorities, and third party successors to the drafters) often need to be long and rather complex to be complete in U.S. law where few good default terms are provided by law.

Family Court Judges On Litigating Family Law Cases

It is always good to hear how judges expect lawyers to behave so that lawyers can act appropriately to help their clients.  Domestic relations cases, with relatively loose procedures that don't perfectly fit the traditional adversarial civil action rights enforcement model and often have pro se parties, is a particularly helpful place to have this guidance.

Some of the problems are fundamental, like entrusting a single judge without co-decision makers with almost completely unbound discretion in parenting matters subject only to the mantra of "the best interests of the child" which has a little meaning but only a little.  Wide discretion in other decision making areas (like which property and what debt should be divided how, and what child support and maintenance awards to make) have much more guidance, but still leave a great many ways that any one case can be correctly resolved.  It is little wonder then, that a large share of all domestic relations litigants perceive judicial bias directed at them in these cases.

Alas, while hearing a judge's perspectives on these cases is always desirable, none of the comments from judges address the hard and non-obvious issues that these cases present, foremost among them, the fact that unlike other civil litigation, a divorce is never really completely over; it is a moving target that continues to deal with new circumstances even during the course of the litigation.  Striking a balance between finality and urgent emergent circumstances in these cases is not easy.

Court Rules

Changes to several important court rules (which differed from the versions initially proposed) were formally adopted May 28, 2015, effective for cases filed on or after July 1, 2015, but the formal announcement didn't make it into the Colorado Lawyer until the August, 2015 issue.  The delay is understandable, but unfortunate, given that many lawyers rely on this publication to keep track of rule changes, which proceeds at a steady dribble because of the administrative process by which they are made by the Colorado Supreme Court.