The Sexual Purity Movement As A Political Tactic

Sexual purity movements, past and present, are not ultimately about promoting a biblical view of sexuality. They are about explaining large-scale culture crises (e.g. Anglo-Saxon decline, the Cold War, changing gender roles and sexual mores) and providing a formula for overcoming those crises.

Today’s movement is laden with a therapeutic rhetoric that presents these choices as the best choices for those who seek to conform their behaviors to God’s will. It promises that those who conform will enjoy spiritual, physical, and emotional satisfaction in their marriage relationships. Other scholars have parsed these claims in more sophisticated ways than I do and many other writers have demonstrated that these expectations are anything but a path to personal well being. What I’m saying is that sexual purity has never been about personal well-being for evangelical adolescents— or anyone.

Each historical example I analyze demonstrates that purity work and rhetoric has emerged at moments when socially conservative evangelicals seek to assert and maintain their political power. Sexual purity isn’t about what Abby and Brendan do on a Friday night, it’s about constructing a view of the United States as a nation in distress and claiming that evangelical Christianity can not only best explain the crisis, but save us from our demise.

- Sara J. Moslener, author of Virgin Nation, writing for Salon.com.

Canada Is Burning As Usual, But Worse

Across Canada, there are more than 418 wildfires burning. To date, there have been more than 4,500 that have charred more than 2,150,000 hectares of forest. There are twice the number of fires that there were at this time last year when just over 2,200 fires burned 515,732 hectares of forest.

From here.

How much is 2,150,000 hectares?  That's 5,313,000 acres or so, which is equivalent to 8,301 square miles which is larger than Connecticut and Delaware combined.

The result is haze in the Eastern U.S. (including Denver) and a lot of burned out land in Canada. Most of the places where the wildfires are largest aren't heavily populated, and there have apparently not been many serious injuries or deaths or even massive property damage.  But, forests take a long time to recover from these events as we know all too well in Colorado.

Does Your DA Have a Zombie Response Team?

The New York Times profiled Cabbo Parish, Louisiana, one of twenty-nine counties in the U.S. that account for half of its death penalty sentences (it is home to the city of Shreveport) and also has the highest per capita death penalty imposition rate of any county with four or more death sentences in the time period studied.  It also profiled acting district attorney behind the trend, Dale Cox.

One colorful detail stuck out from the usual kinds of facts reported in such a story:

[I]n 2012 . . . two senior assistant district attorneys, both of whom continue to prosecute capital cases elsewhere in the state, were forced to resign from the office after they obtained machine guns from a military surplus program through what an inspector general found to be falsified applications. The men had belonged to a group of prosecutors who participated in firearms exercises as part of a unit known as the Caddo Parish Zombie Response Team, sporting arm patches around the office and specialty license plates on their trucks.

From The New York Times.

Yes, that's right, the Cabbo County DA's office had an official, machine gun armed "Zombie Response Team" that received military weapons from the United States Department of Defense to meet their local zombie response needs.

Note that Dale Cox was not the District Attorney in the Parish at the time.

Trading Halted In 89% of Chinese Stocks

The Chinese government has basically closed the stock markets for 89% of its publicly traded firms due to a continuing stock market crash.  This could very well be the beginning of the predicted Chinese Great Depression.  As one econ blogger states:

Yes, the bottom is really falling out in China, prepare for another Great Depression there.

A report on other Chinese economic woes from earlier today when only one-third of the publicly held firms in China had frozen trading, seems a bit understated to me (and the author's later twitter posts are more bearish).  I particularly note concerns about China's "real economy. (I'm not the only one concerned about China's "real economy"):

Car inventories are rising rapidly throughout China. Basic materials like copper and rebar are collapsing in price even after large short positions by Chinese short sellers are closed. Coal shipments are being turned back and collapsing in volume. Electricity consumption is essentially flat YOY. This is no longer just real estate development inputs but a growing list of products and industries with bad data. This economy is absolutely not growing at 7%. Given the debt levels of the economy, this is a real concern.

The report also has a bit more detail on the Chinese stock markets yesterday:

Out of the entire Shanghai index, only 20 stocks enjoyed a positive day yesterday. Almost 900 were losers and 656 were down more than 9.5% with the 10% limit.

CNN tells us how big the stock market crash in China has been so far:

Since June 12, the Shanghai Composite has lost an unnerving 32%. The Shenzhen market, which has more tech companies and is often compared to America's Nasdaq index, is down 41% over the same period.

This collapse has occurred despite policy responses from China noted by CNN (editorial omissions not noted):

1. The government is essentially buying stock.
2. China is even buying small stocks.
3. A new $40 billion (250 billion yuan) plan announced Wednesday to foster growth in areas of the economy that need it most.
4. More government spending: China will also speed up infrastructure spending that the government was already planning to do such as building roads and utilities.
5. Over half of China's stocks have stopped trading.
6. Big shareholders can't sell for 6 months.
7. No more IPOs (for now).
8. Central Bank slashed rates.
9. Chinese investors can use their homes as collateral: Investors now have more options to back their margin trades
10. Devaluing the yuan: China's currency has fallen heavily in July against the dollar.

 The New York Stock Exchange is closed too, but that appears to be a mere technical glitch with its computer systems.

Tax Deadbeats Caused The Greek Financial Crisis

One of the main reasons that the Greek government did not have enough money to pay its debts, which in turn produced a financial crisis that will had led to defaults on its national debt and is likely to cause Greece to leave the Euro-zone, is that 89.5% of Greek taxes are not collected.  By comparison, only 2.3% of taxes owed in Germany go uncollected.

The material linked also shows that the United States has a very small "shadow economy" (8.6% of GDP) compared to its European competitors (12.3%-26.3%), or even Japan (11%), let alone Greece (28.3%).

The Indian Removal Act Was Championed By Slave States

In the House, four fifths of slave-state representatives voted for the Indian Removal Act, while only a third of representatives from free states did.

From here.

To be clear, we are talking about legislation based during Andrew Jackson's Presidency, not recent legislation.

The Program That Pro-Life Republicans Oppose

Over the past six years, Colorado has conducted one of the largest ever real-life experiments with long-acting birth control. If teenagers and poor women were offered free intrauterine devices and implants that prevent pregnancy for years, state officials asked, would those women choose them? 

They did in a big way, and the results were startling. The birthrate for teenagers across the state plunged by 40 percent from 2009 to 2013, while their rate of abortions fell by 42 percent, according to the Colorado Department of Public Health and Environment. There was a similar decline in births for another group particularly vulnerable to unplanned pregnancies: unmarried women under 25 who have not finished high school.... 

In 2009, half of all first births to women in the poorest areas of the state happened before they turned 21. By 2014, half of first births did not occur until they had turned 24, a difference that advocates say gives young women time to finish their educations and to gain a foothold in an increasingly competitive job market.... 

The state health department estimated that every dollar spent on the long-acting birth control initiative saved $5.85 for the state’s Medicaid program, which covers more than three-quarters of teenage pregnancies and births. Enrollment in the federal nutrition program for women with young children declined by nearly a quarter between 2010 and 2013.

From The New York Times.

Yet, despite this incredible success, the "state failed to get additional funding through the General Assembly this spring", due to opposition from the Republican controlled state senate.

This is because the extremist in the Republican party believe that birth control is murder, even though 99% of women will use birth control at some time in their life.

Is The Big China Crash Happening Right Now?

The Shanghai index is firmly in bear market territory, down 28.6 per cent since the June peak, while the tech-heavy Shenzhen Composite has fallen 33.2 per cent.

From Marginal Revolution.

 The Great Depression in the United States and many other serious economic collapses have begun with a stock market crash. China's stock market is now collapsing, and this could mean that the depression class economic downturn that I have predicted that China will experience quite some time ago, is coming to pass.

 But, it remains to be seen if this is a leading indicator of a major economic downturn for the world's most populous nation, or merely a temporary stock market blip in a stock market that is much younger, much less central to the nation's economy, and relatively thinly capitalized compared to stock markets in more developed countries.

Can We Continue Our Long Run Of Democracy?

The United States of America is certainly not the oldest country on the face of the Earth.  But, it is one the the very oldest democratic regimes.

We weren't the first country to replace absolute or constitutional monarchy with a republic, but most of the other early democracies no longer exist, or were interrupted.  And, while our electoral tradition are borrowed from Britain, at the time we gained independence, the King was still considerably more than a figurehead.  The only modern regime that has something close to the division of power between a monarch and elected representatives to that of 18th century Britain is the constitutional monarchy established by the King of Jordan.

The democracy of the Greek city-states fell to Rome.  Rome's experiment as the largest democracy that history had ever known was followed by an extended period of despotism and then by the fall of the Roman empire itself.  Democratically ruled city-states and the Venetian Republic in what are now Italy and Germany, all fell in turn.

The French Revolution came quick on the heels of the American Revolution, but was replaced by Napoleon's Empire, and after democracy was restored (we are in the Fifth Republic by French reckoning) later by the Nazi's in Vichy France.  Iceland has had democratic assembly for a very long time, but was a colony until 1941.  Switzerland's democratic cantons had predominant devolved into hereditary oligarchies when the French briefly imposed their own brand of democracy subordinate to that of France in 1798 before the current federal and democratic Swiss regime was established in 1803.

 * * * *

As a result, we are in uncharted territory.  There are more than a hundred historical precedents for democracies collapsing.  Only a handful have lasted as long as 239 continuous years, and all of the others ended badly.

There is real reason for concern.

Congress struggles to carry on even the ordinary business of government, like passing appropriations bills without forcing government shutdowns and promptly considering nominations to government offices where the U.S. Senate has advice and consent power.

The courts are often called into to intervene when state legislatures fail to enact redistricting plans for Congressional elections, or when Congress fails to enact fixes to well known flaws with laws it has enacted.

Deadlock is the norm; reasoned policy making is the exception.

Our kludge of an election process almost always elects legislators who are less politically centrist than the constituencies that they represent.

Political debate has reached a point where shared boundaries of acceptable conduct and proposals have fallen away, particularly on the right wing of American politics.

Far too many members of the Republican establishment think that calling for secession from the United States, armed insurrection against the enforcement of validly enacted laws, defaulting on the national debt, authorizing the summary execution of homosexuals, government endorsed torture, establishing Christianity as a state religion, and state nullification of federal law are within the range of policy options that are entitled to serious consideration.

Our future does not look bright when a political party that controls both houses of Congress denies the existence of global warming, insists that the world is only 6,000 years old and that the evolution doesn't exist, is opposed to birth control, urges its state politicians to deny millions of Americans health care that can be provided to them at no state expenses.

We should fear a political party that is built on a foundation of animosity towards blacks, Hispanics, immigrants, atheists, Muslims, homosexuals, women, and the poor. We should be worried that something like 90% of military officers in the United States are supporters of that political party.

Of course, the problem is not just the politicians.  They draw their power from the millions of Americans, especially in the South and Great Plains, who are seething with hate and deny the very legitimacy of our system of government.

Ultimately, our system of democratic government will be at grave risk of surviving for decades, as our union was in the years leading up to the Civil War, if the aspects of their ideologies that threaten the existence of our republic cannot be widely discredited before it is too late.

There is reason to hope.

In a sea change, this summer, urged on by Northern Republicans for whom it is an embarrassment, and by big business, the Republicans have finally recognized that the Confederate symbolism that they adopted in a fight against the Civil Rights movement which was on the wrong side of history must be disavowed because it is as symbol of white supremacy, of traitors to our country, and of hate.

Republicans millennials are not nearly as bigoted as their parents and grandparents before them.

Big business interest in the Republican party which have an economic interest in the rule of law and widespread domestic tolerance, have some capacity to reign in its radical firebrands who welcome illegal and violent means, and embrace hate.

But, our nation's very survival depends upon winning cultural and political battles whose outcome is by no means certain.  If we don't continue to strive mightily in this never ending and often times tiresome fight, we will lose the freedoms that we hold so dear.

A Decade Of Blogging At Wash Park Prophet

Today is the 10th anniversary of the Wash Park Prophet blog.

One particular highlight is that this blog won a Best of Westword award in March of 2007 (Westword is our local free, weekly, alternative news magazine, and many beloved local restaurants proudly display their Best of Westword awards in framed displays on their premises).  Posts at this blog have been used a class materials in a class at a British War College, and have been cited in at least one law review article.  Another post featured an interview with a top aide to the Governor.

My son was three years old and had not yet started early childhood education at the Denver Public Schools when I started writing this blog.  This fall, he will be entering high school as a freshman.

In that time, I have published 6724 posts at this blog, and 812 posts at sister blog "Dispatches From Turtle Island" which I established on May 22, 2011 for science and prehistory related posts, so that both blogs could become more focused.

My combined blogging output at these two blogs over the last decade has been 7,536 posts.  This works out to a little more than two posts per day, on average, for the last ten years, although I was more prolific in the early years than I have been in the last few years.  Still, there has never been a year when I haven't averaged at least six posts per week, so I certainly haven't abandoned this ever consuming hobby either.  But, the pace of almost three posts per day, on average, that I started with in 2005, ultimately wasn't sustainable, and my blogging output is now split between two blogs with very different audiences, so the number of posts each month at each blog is now smaller than it would have been had they not be split off from each other.

My combined output of posts by year has been:

2005: 808 (in just under six months)
2006: 1192
2007: 690
2008; 810
2009: 835
2010: 750
2011: 836
2012: 598
2013: 460
2014: 331
2015: 226 (in just over six months)

There have also been lots of comments, 4557 at Wash Park Prophet, and 1385 at Dispatches from Turtle Island, for a total of 5,942 comments over ten years, a bit less than one per post, on average, and a significant share of them written by me, either in response to other comments or to update old posts with new relevant developments.

The blogger software (which do not go back in time all of the way to the beginning of the blog) has tracked a grand total of 1,039,603 page views at Wash Park Prophet, and 258,642 at Dispatches from Turtle Island, which is a combined 1,298,245 page views since the blogger tracking feature came into being.

I am currently averaging about 620 page views per day at Wash Park Prophet and 285 page views per day at Dispatches from Turtle Island, for a combined average of about 905 page views per day at the two blogs combined.

My most viewed post was on the fraudulent aspects of the Rich Dad, Poor Dad books, which has received 23,895 page views.  This was followed by the most widely viewed of my Dispatches at Turtle Island posts, Pre-Out of Africa Population Sizes And Densities, with 12,707 page views. Third place goes to the post, How Safe Are Motorcycles?, which has received 12,109 page views.

It also bears mentioning that many of these posts are quite lengthy and well sourced.  These blogs have sought to be a source of original context and analysis in addition to being a mere guide to other worthwhile content out there on the internet.

All of the Dispatches from Turtle Island posts have been indexed by subject, as have all posts at Wash Park Prophet from August 2006 or later, and all posts at Wash Park Prophet from July 2005. There are a few posts that have been indexed from the twelve months that are not complete, which were also some of the most prolific in this history of this blog, but the task of indexing the last twelve months of the decade of blogging is still not quite yet complete.

I plan to celebrate the anniversary by having a blog birthday berry pie.

Colorado Needs More Federal Judges

Colorado Doesn't Have Enough Federal Judges To Handle A Growing Caseload

The last time that the U.S. District Court for the District of Colorado, the federal trial court in the state, had a new judge authorized was in 1984 which brought it to a roster of seven full-time Article III federal judges.  Colorado's federal judges have 40% more cases each than the national average. Colorado's population has grown 66% since 1984. Colorado has one regular Article III federal judge per 765,124 people as of July 2014, and is one of the fastest growing states in the nation right now.

Colorado also has far more than its share of pro se prisoner's petitions because it is home to four large federal prisons in Florence, including AdMax, the highest security prison in the nation.  The task of handling suits challenging prison conditions and collateral attacks on prison conditions from prisoner's makes up a significant share of the responsibility of federal trial courts and those suits most often come from prisoners serving long terms in high security facilities.

In 1984, it took an average of 13 months from the time a lawsuit was filed to the time of trial. In the 1990s, it increased to 19 months. Today, it takes an average of 29 months for civil cases to go to trial[.]

It isn't unusual for it to take six months or more for a judge to rule on a fully briefed motion in federal court in Colorado, and this isn't because federal judges are lazy, or the American system of civil procedure is inefficient.  No other court system in the world operates with anything close to as few judges per case as the American one does.

While some of the increased time to trial is a product of new procedures and different kinds of cases on the docket, much of it is simply a function of having fewer judges to do the same amount of work.  Even if federal court jurisdiction were significantly narrowed in order to shift more cases to state courts, and federal criminal prosecution policies were changed to reduce federal criminal caseloads materially, Colorado's federal judges would still be overworked.

Some of that work can be delegated to retired "senior judges" and to magistrates, but much of that work must be done by full fledged active federal district court judges.

Few Areas Of Government Spending Produce Such High Returns

Colorado already has plenty of court house space to serve a couple of new federal judges.

Federal judges are paid $199,100 per year, which once administrative support staff and employee benefit are considered works out to something more like $350,000-$400,000 per federal judgeship.  But, a significant share of the cost of a federal judgeship is offset by filing fees in civil litigation and court costs paid by federal criminal defendants who are convicted.  In round, back of napkin estimates, those amount to something like $150,000 per judge, although when an overloaded court gets more judges to handle the burden, that isn't likely to increase court revenues very much.  So, the cost of two new judges for Colorado is likely to be about $700,000.

Without a doubt, $700,000 is a tiny price to pay for a decision that is almost guaranteed to significantly reduce the amount of time it takes for cases to go to trial in many thousands of cases per year in Colorado. This is something on the order of $175 per private civil case, and perhaps $50 per case or less, spread across the entire docket which also includes civil cases where the United States is a party and criminal cases.

Almost every case on the docket would realize $50-$175 of benefits by being resolved many months sooner than they are today.  Skimping on tiny expenditures in the larger scheme of things for a critical choke point in the U.S. economy where some of our most crucial disputed economic decisions are made, does us no favors.

The Politics Are Right To Secure Wide Bipartisan Support

This is also a matter upon which Colorado is well suited to secure bipartisan support at the moment.

Long, and almost uniformly honored tradition in the U.S. Senate requires that all U.S. District Court judicial appointments from the President be approved by both Senators from the affected state.  Right now, Colorado is represented in the U.S. Senate by a fairly moderate Democrat (relative to his caucus in the U.S. Senate) and a fairly moderate Republican (relative to his caucus in the U.S. Senate), who have so far in their brief cohabitation as U.S. Senators from Colorado not shown undue animosity towards each other.  Thus, both parties are pretty much guaranteed that any judges appointed to fill the two new vacancies that the bill would create in the U.S. District Court for the District of Colorado would be judicial moderates, chosen for competence rather than for their political leanings.

Given these realities, unsurprisingly, every single member of Colorado's delegation in the U.S. House of Representatives has backed a bill introduced by Diana DeGette to authorize two more judgeships, for a total of nine, in Colorado.  This is no good reason to delay action on this clear problem with a clear solution and obvious benefits to Colorado's economy.

Not All Christians Are Opposed To Same Sex Marriage

Not all Christians, and not even all Evangelical Christians, are opposed to same sex marriage.  A moving account from an Evangelical Christian minister in Portland, Oregon whose take on the issue mirrors the values of the Christianity (and Boy Scout experiences) that I remember from my childhood reaffirm that.

While I have left Christianity, because I don't believe in God, I hold many of the values that I learned as a child from the perspective of a secular humanist.  Those values place doing unto others as you would have them do to you and love higher up the authority scale than outdated Biblical pronouncements.

Unfortunately, in part because a lot of people who hold these values also doubt the metaphysical mysticism of Christianity, there aren't nearly as many actively practicing Christians like that left anymore.  But, it is encouraging to see that there are still some Christians who know how to act like Christians left.

Colorado Supreme Court's Adopted New Civil Procedure Rules Drop Delay Reduction Reform

In Colorado, you commence a lawsuit by filing a Complaint and delivering it to the persons who are being sued.  Once that is delivered, the defendants have a certain number of days to either file an Answer to the allegations of the Complaint (with or without counterclaims against the person bringing the lawsuit and cross-claims against co-defendants) or to file a Motion to Dismiss or a Motion for a More Definite Statement.

Motions to dismiss can either argue that the court lacks jurisdiction, or argue that even if everything in the Complaint is true that the defense wins (this is called "failure to state a claim upon which relief can be granted").  A Motion for a More Definite Statement argues that the Complaint is too vague to provide a response to in an Answer.  In these circumstances, there is no requirement to file an Answer and fully frame the dispute between the parties until after these motions are ruled upon.  Many of these motions are filed primarily for purposes of delay and to frame the legal issues in the case for the judge, knowing that they are unlikely to be granted.

It is not uncommon for a court to take a very long time to rule on a Motion to Dismiss for failure to state a claim upon which relief can be granted (a.k.a. a 12(b)(5) motion), or a Motion for a More Definite Statement.  Within the last couple of years, I have had cases where rulings on each of these types of motions has taken more than six months.  Thus, the case doesn't even really begin for many months.

In federal court, the duty to file an Answer is delayed by the filing of a Motion to Dismiss, but not the discovery process unless a "String Cheese Motion" is granted, which is usually done only in cases where there are jurisdiction disputes, although the formal legal standard is not categorical and involves a balancing test.

Rule changes proposed by the Colorado Supreme Court earlier this year would have required defendants to file Answers even when a motion to dismiss for failure to state a claim upon which relief can be granted, or a motion for a more definite statement is pending.  The postponement of the requirement to file an Answer would have continued to exist in cases where jurisdiction is at issue.  This reform had been implemented in a pilot project in Colorado courts with great success and little complaint. A review of the written comments filed regarding this proposal does provides some insight, however.

But, for some reason not publicly explained, the final version of the rule, which takes effect for cases filed on and after today in Colorado, didn't not incorporate this critical delay reducing reform.  This was certainly the prerogative of the court to do.  An ability to make changes between the proposed and final version of a rule change is why public comment is allowed in the first place.  But, it is still hard to understand why this sensible signature reform of the new rules was not adopted.

Opposition from the CBA Litigation section, and a handful of its members along the same lines, may have been a factor. It said:

Rule 12. Requiring answers and allowing cases to proceed, despite the pendency of certain motions to dismiss, may increase the amount of attorney fees recoverable against plaintiffs, such as under section 13-17- 201, CR.S. 2014, upon dismissal.

Another opponent was CIRSA, which is an insurance-like defense pool that represents municipalities that have been sued. It stated (emphasis added):

CIRSA is concerned because these proposed amendments to Rule 12(a) will require the municipality and its employees to file an answer and engage in time consuming discovery even though they have filed a motion to dismiss for failure to state a claim under Rule 12(b)(5). This will cause CIRSA and its members (many of whom have significant deductibles) to incur substantial litigation expense while awaiting a ruling on the Rule 12(b)(5) motion. CIRSA's experience is that rulings on pending Rule 12(b) motions can take a considerable amount of time, often many months. Requiring the municipalities and their employees to incur the expense of litigating these case 'while awaiting a ruling on the Rule 12(b)(5) motion will cause unnecessary waste of time and money. 

In addition, certain immunities are often raised under Rule 12(b)(5). The decision on whether the municipality or its employee is entitled to immunity from suit is critically important, and the purpose of filing the motion to dismiss is to protect public employees and municipalities from ill-considered and improperly filed lawsuits. Accordingly, CIRSA's proposal is that the Rule should exclude all defendants from filing an answer and engaging in discovery when the defendants file a motion not only under Rule 12(b)(1) -(4), but also under 12(b)(5).

Full disclosure:  CIRSA was one of my major clients for several years early in my career.

Colorado attorney general opposed the rule change for similar reasons:

The proposed changes to Rules 12 and 16 would require parties to file an answer and place a case "at issue" for purposes of scheduling and discovery, even though a motion to dismiss has been filed under Rule 12(b)(5) for failure to state a claim. The Attorney General's Office has identified significant concerns regarding the effect of these proposed changes on defenses commonly raised in litigation against public officials. Accordingly, the Attorney General's Office has proposed additional revisions to Rules 12 and 16. See attached. The proposal would (1) exempt from the new requirements Rule 12(b)(5) motions in which a party raises "a defense of qualified or absolute immunity" and (2) add Rule 12(b)(5) motions in which a party raises "a defense of qualified or absolute immunity" to the list of motions that the trial court should prioritize. The Attorney General's proposal has been presented to and accepted by the Rules Committee. 

Although public entities commonly file motions to dismiss under Rule 12(b)(1) asserting immunity under the Colorado Governmental Immunity Act (CGIA), many of the other immunities frequently asserted by public entities and officials are raised under Rule 12(b)(5). Most significantly, state actors (officials and employees not only of the State but also of counties, municipalities, school districts, and other public entities) often assert the defense of qualified immunity in response to claims asserting that a state actor violated a federal right. Such claims are routinely filed in state court. See, e.g., Churchill v. Univ. of Colo., 285 P.3d 986, 999 (Colo. 2012). Because a state actor's entitlement to qualified immunity is assessed based on the face of the complaint and does not implicate the court's subject matter jurisdiction, such motions are filed under Rule 12(b)(5). See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 666 (2009) (noting that the case originated with a motion to dismiss asserting failure to state a claim); Sebastian v. Weaver, 2013 Colo. App. LEXIS 1450, at *2 (Colo. App. 2013), cert. granted, 2014 Colo. LEXIS 673 (Colo. 2014). 

The United States Supreme Court routinely has held that state actors are presumed to be immune from liability as long as their actions did not "violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Whether a defendant is entitled to qualified immunity should be resolved at the "earliest possible stage in litigation." Pearson v. Callahan, 555 U.S. 223, 232 (2009). This is because qualified immunity is both a defense to liability and an "entitlement not to stand trial or face the other burdens oflitigation." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Denial of qualified immunity to a state official is subject to interlocutory appeal when the qualified immunity determination is made as a matter oflaw-as is routinely the case. City of Lakewood v. Brace, 919 P.2d 231,241 (Colo. 1996). 

Motions to dismiss asserting other forms of immunity such as the absolute immunity of judicial officers and prosecutors similarly are brought under Rule 12(b)(5). See, e.g., Imbler v. Pachtman, 424 U.S. 409, 416 (1976). Denial of a motion to dismiss based on absolute immunity also would be subject to an interlocutory appeal. See Chadha v. Charlotte Hungerford Hosp., 865 A.2d 1163, 1170 (Conn. 2005). 

Because the various immunity defenses are intended to insulate public employees from the burdens of discovery and trial, as well as from liability, motions to dismiss raising these defenses should be exempt from the proposed requirements to answer the complaint and begin discovery. I appreciate the Committee's willingness to consider the concerns of public entities and urge the Supreme Court to consider the State's proposed revisions when the Court takes up the proposed amendments.

The concern of the municipalities and the state attorney general could have been addressed with a modification of the rule, postponing the requirement to file an Answer when a defense of qualified immunity was raised.

But, the concern raised by the Plaintiffs bar, the the attorneys' fees owed if a motion to dismiss is granted would be greater if the litigation was being prosecuted while the parties awaited a ruling on the motion to dismiss is trickier.  The Colorado Supreme Court, in reaction, chose caution for now, even though in the large share of cases, Motion to Dismiss filings are a very important factor in increased litigation cost and delay.

As a matter of policy, I would favor eliminating CRCP 12(b)(5), except in cases involving governmental immunity, entirely, and likewise eliminating the fee shifted statute in Colorado that awards attorneys' fees when a motion to dismiss is granted, or in the alternative, awarding the Plaintiff their attorneys' fees in any case where a CRCP 12(b)(5) motion does not successfully dismiss every single claim asserted by the Plaintiffs in the case, so it would be used much more sparingly.

Govtrack.us

I've added one of my favorite new reference sources, Govtrack.us, to the sidebar.  This provides a user friendly interface to track the progress of federal legislation.

Best of all, the website handicaps every single bill in the legislative process with a percentage chance of enactment that allows a neophyte to separate the serious bills from those that are going nowhere.

I Support More Funding For Asteroid Defense

Today is Asteroid Day, in honor of the June 30, 1908 Siberian Tunguska asteroid strike that hit with a force 1000 times the Hiroshima atomic bomb in the middle of nowhere.  Objects falling to Earth from space, while rare, can be devastating when they do hit, leading to more than one of the mass extinctions in the history of life on Earth.  We don't want to end up like the dinosaurs.

These are low probability, but immense consequences events, and we have finally reached a point technologically where we have the ability to identify potential threats and do something about them before it is too late.  Even a comparatively minor strike, like the Tunguska event, would be a catastrophe of epic proportions it it hit an urban area.  This is one kind of catastrophe we can't afford to learn from tragic experience from after that kind of hit.

A major investment in asteroid defense is well worth it, if it ever becomes necessary, and the probability that it will be invoked at least once or twice in the remaining history of human civilization is real.  It will do more to make us safe than many comparable investments in national defense, and of course, it is a question of national (and global) security.

And, yes, there is an app to evaluate the risk.

Wasting Water In The West

The water law property rights of the arid American West are supposed to lead to efficiency, but the galling reality is that they often encourage waste in reality as applied.

A good example is the use of scarce water in California to grow water thirsty cotton in the Sonoran Desert, when it would be more economically efficient to grow it in the moist American Southeast.

Inefficient agricultural use of water for low value agricultural activity relative to the value of the immense amount of water used is the number one reason that water is scarce in the arid American West. Federal crop subsidies exacerbate the problem.

Over the last 20 years, Arizona’s farmers have collected more than $1.1 billion in cotton subsidies, nine times more than the amount paid out for the next highest subsidized crop. In California, where cotton also gets more support than most other crops, farmers received more than $3 billion in cotton aid. . . . If Arizona’s cotton farmers switched to wheat but didn’t fallow a single field, it would save some 207,000 acre-feet of water — enough to supply as many as 1.4 million people for a year. . . . The government is willing to consider spending huge amounts to get new water supplies, including building billion-dollar desalinization plants to purify ocean water. It would cost a tiny fraction of that to pay farmers in Arizona and California more to grow wheat rather than cotton, and for the cost of converting their fields.

This is also hardly the only problem with inefficient water use in the west driven by bad policy. Another source of waste under Colorado's water laws, for example, is a use it or lose it system for water rights that turn any water conservation approach that reduces water use into an immediate 100% forfeiture as a penalty for not wasting water.

In Colorado, Use It Or Lose It dates to statehood when miners competed for water needed to extract gold. Colorado leaders set up a system defining water as property where settlers who proved they'd put it to a "beneficial use" could divert it from rivers and streams. But settlers could lose rights to water if they didn't continue their use. Leaving water to sustain ecosystems wasn't considered a legitimate beneficial use.

The state engineer records water use. When a farmer, rancher or city uses less than the allotted maximum over a 10-year period, state officials declare all or a part of a water right "abandoned" on a list issued every 10 years. That water no longer can be diverted and goes up for grabs to other rights holders next in priority.

Given the water pressures in the West, Louisiana-based ranch owner Witt Caruthers this year decided to try the new approach at his head-gates along Willow Creek.

"Colorado's water system created an incentive to use our water even in times when it's not absolutely necessary. When you're under that pressure to use it or lose it, you're almost forced to abuse it. That's to the detriment of all," Caruthers said.

Given these incentives, is it any wonder that farmers aren't interested in water conservation?

Of course, Colorado is also famous for forbidding basic conservation practices like keeping rain buckets or establishing grey water systems that prevent water from leaving the place where it falls to be diverted by someone with senior water rights from a river somewhere further along the river basin than the place where it falls.  Legislation to change that policy was defeated in the Colorado General Assembly in this year's session.

Colorado Supreme Court Invalidates Sectarian Voucher Program

* The Colorado Supreme Court has struck down a Douglas County School Board voucher program that would have used public funds to pay tuition for sectarian schools.  Most justices voting to kill the program relied on a provision of the state constitution which has been on the books since 1876 that prohibits such programs in no uncertain terms, although justices reached the same conclusion for different reasons.

The program was enacted when the local Republican party ran a slate of partisan and ideological candidates for the Douglas County School Board that won and implemented a slate of conservative proposals for the district, which has mostly led to a dramatic decline in quality of the public schools in Douglas County.

* Meanwhile, Colorado Public Radio reports that the Denver Public Schools will be asking for more money to build schools and operate schools in 2016, although the exact details have not been finalized.  District enrollment has surged from 70,000 to 90,000 in recent years, making Denver the fastest growing urban school district in the nation, through a combination of increasing population and an array of non-sectarian charter schools and special programs in public schools that have convinced families that live in the district to send their children there, rather than to private or suburban schools.

* Conservatives at the Western Conservatives Summit in Denver held a straw poll for President that decisively backed candidates with no serious hope of winning the GOP nomination, while scorning the front runners in the race.

[Ben] Carson, a retired surgeon, won the straw poll for the second year in a row with 224 votes to beat out former Hewlett-Packard CEO Carly Fiorina, who received 201 votes. Wisconsin Gov. Scott Walker was third with 192 votes, and Texas Sen. Ted Cruz was next with 100. While most national polls have Jeb Bush as the front-runner, the former Florida governor finished 14th out of 18 candidates on the GOP straw poll ballot Sunday. . . . In 2011, Herman Cain received 48 percent of the votes in the summit's straw poll to eventual Republican nominee Mitt Romney's 10 percent.

Ben Carson is also notable for being the only African-American candidate in the GOP Presidential race.

Scandinavian Policies v. Scandinavian Human Capital?

The descendants of Scandinavian migrants in the US combine the high living standards of the US with the high levels of equality of Scandinavian countries. 

Median incomes of Scandinavian descendants are 20 per cent higher than average US incomes. 

It is true that poverty rates in Scandinavian countries are lower than in the US. However, the poverty rate among descendants of Nordic immigrants in the US today is half the average poverty rate of Americans – this has been a consistent finding for decades. In fact, Scandinavian Americans have lower poverty rates than Scandinavian citizens who have not emigrated. This suggests that pre-existing cultural norms are responsible for the low levels of poverty among Scandinavians rather than Nordic welfare states.

From here via Marginal Revolution.

The short book argues that Scandinavian prosperity is undermined by strongly democratic socialist policies relative to success it would have without them as a result of its beneficial cultural norms, and that we should therefore not try to emulate Scandinavian governmental policies and expect them to work elsewhere.

The fact that my mother was a 100% Scandinavian descendant also makes this rare study of Scandinavian-Americans interesting to me.

I can't say that I'm convinced, however, although the quote above that captures the book's main premise is intriguing.

The fit immigrant hypothesis, which argues that immigrants tend to have a greater abundance of traits that lead to success than people who don't immigrate because they lack the ambition and motivation and confidence to take risks that immigrants do, is more than adequate to explain the disparities.  Also, clearly, the study is looking at pre-social welfare intervention poverty rates, and not post-intervention poverty rates which Scandinavian countries remedy much more successfully than the United States does. The higher Scandinavian, pre-intervention poverty rates may, however, reflect a more urgent incentive to avoid poverty in the U.S. than in Scandinavia.

The forward to the book (by a different author) is as follows:

I am regularly amazed at the persistence of several tenacious fallacies regarding the Nordic countries. In this tightly argued monograph Nima Sanandaji has performed a service by addressing them one by one and marshalling evidence and logic to explain the history of Nordic economic success and the genesis, impact and reform of their welfare states. No one who reads this work will be able to repeat, at least not without a bad conscience, the familiar slogans about Nordic socialism, third-way policies or how high taxes and state-guaranteed incomes beget economic growth and engender and nurture moral responsibility and community spirit.

The lag between perception and reality is especially glaring in the case of the Swedish model. Outside Sweden the serious reforms initiated in the 1990s seem not to have been noticed and ‘third wayers’ continue to act as if Sweden had not liberalised the economy, introduced competition in the production of government-funded services, lowered tax rates and reformed state benefit systems. To most of the ‘Swedish model’ boosters, it is still 1975.

It is an easily overlooked truism that a redistributive system presupposes something to redistribute. The Nordic countries enjoyed robustly productive systems before the welfare states we know today were established. Starting in the 19th century, the peoples of the Nordic countries created vast amounts of wealth, founded new firms and industries, and generated societies with high degrees of social trust and moral responsibility.

They built on foundations that, as a result of their histories (notably the relative absence of feudalism) were comparatively egalitarian and mono-ethnic. That wealth and those social orders preceded the welfare state; indeed, without them, the Nordic experiments in welfare statism would have certainly turned out quite differently, as experiences in other countries suggest. After welfare states were initiated, however, the Nordic countries began to coast on accumulated capital. Even more worrying, the strong social trust that was so widespread among the people and that limited predatory behaviour, shirking and disregard for the interests of one’s neighbours has been undermined by tax rates that punish those who contribute and transfer payments that encourage those who take. The rising percentage of the populations on disability and early retirement, in an age of improving health and longevity, suggests a population in which shirking has become more and more socially acceptable. The long-term prognosis for such a model is not a happy one.

The comparison of Nordic populations with their cousins who decamped for the US, which forms a small but interesting part of Sanandaji’s analysis, suggests that when pundits praise, say, Swedish healthcare by looking at longevity, what they are measuring is not the impact of the Swedish health financing system, but of Swedishness, whether in diet, genetic inheritance or behaviour. Indeed, Americans of Nordic descent exceed their stay-at-home cousins in high degrees of social trust, high incomes and low levels of poverty. It turns out that ‘culture matters’ and ‘culture’ is not merely a placeholder for ‘all the stuff we cannot understand’ but can be measured and studied in terms of behaviour. Cultural capital, and not only physical capital, matters and, like physical capital, cultural capital does not automatically renew itself: it can be eroded over time by perverse incentives.

A Liberal High Water Mark

We've hit a liberal high water mark, despite the fact that nationally, both houses of Congress have Republican majorities and a majority of U.S. Supreme Court Justices were appointed by Republicans, and in Colorado, one of the two houses of the Colorado General Assembly is controlled by Republicans.  Both the U.S. Senate and the Colorado shift happened in the 2014 election, less than a year ago.

* This morning's decision by the U.S. Supreme Court in Obergefell v. Hodges allows same couples to marry on the same basis as opposite sex couples throughout the United States.  

This is the culmination of the gay rights movement that arose in part from the community of gay men formed starting in World War II when sailors discharged from duty for being gay were all dumped together in San Francisco, began in earnest with the Stonewall riot in 1969, gained urgency as AIDS disproportionately afflicted gay men, saw a serious setback in a U.S. Supreme Court ruling upholding criminal sodomy laws for consensual same sex intercourse in the 1986 case of Bowers v. Hardwick, state and federal legislation overriding a 1993 decision of the Hawaii Supreme Court legalizing same same marriage was a case of one step forward and two steps back.  But, gay rights made a series of courtroom gains simultaneously following and causing shifts in in public opinion.  The 1999 decision of the Vermont Supreme Court mandating civil unions but not requiring them to be called marriage was one of the first big victories.

Legislatures, referendums and lower courts had already brought gay marriage to about three-quarters of Americans (and seventeen countries outside the United States, including Canada, England, Wales, Scotland, Ireland, South Africa, New Zealand, all of Scandinavia, France, Belgium, the Netherlands, Luxembourg, Spain, Portugal and much of Latin America, but excluding Mexico where a constitutional right to same sex marriage was declared on June 14, 2015, but has not yet been fully implemented).  Public support for gay marriage had already reached 57-38 according to a Wall Street Journal poll on the eve of the decision percent when the Court ruled today.  Public support for same same marriage in the U.S. has solidified at above 50% by 2013, and one CNN poll in early 2015 had shown support as high as 63%.  

We can reasonably expect that support for gay marriage will continue to increase significantly over the coming year now that it is legal everywhere, because public opinion usually follows legal resolution of divisive social issue.  In contrast, when Loving v. Virginia struck down bans on interracial marriage, the bans still had strong majority support that continued for something like a decade after the decision was handed down.  Yet now, public support for legally permitting interracial marriage is nearly universal, even among former segregationists and far right politicians and political activists.  

There are rare cases where increased public support for a position taken by authoritative legal bodies (which is almost universal) does not translate into near consensus support over time - opposition to abortion, death penalty support, support for the establishment clause prohibitions on governmental religious statements, and opposition to the right to bear arms, are probably the most notable.  But, they are rare.  

Also, in cases of controversy, legislation and judicial action often finds an uneasy middle ground.  The U.S. Supreme Court's abolition of the death penalty, for example, lasted only a few years, but over time after the death penalty was legally permitted again, the legal system has chipped away at the circumstances when it can be imposed (e.g. in cases involving juveniles, in cases involving the mentally ill, and for most non-homicide offenses such as child rape) and has exercised strict judicial review that postpones most state level executions by a decade or more despite federal laws limiting the scope of collateral attacks on death sentences and other state convictions enacted in response to the strictness of judicial review of these sentences.

Importantly, another reason that legislative and judicial steps to legalize same same marriage have changed public opinion is that when this was done, none of the parade of horribles offered up by gay marriage opponents have materialized.  Some sex marriage had existed continually in some states since 2004 when Obergefell was decided.  Civil unions, which were same sex marriages in all but name, had been around since 1999.  The Netherlands started to allow same sex marriage in 2001 and our neighbor to the north, Canada, had followed suit by 2005.  No notable problems was caused by same sex marriage anywhere that it was legalized, in part, because allowing a couple to marry has minimal impact of people who aren't part of that nuclear family, and in part, because the number of same sex married couples as a proportion of all married couples in any place where same sex marriage has been legalized has always been tiny.

Obergefell also demonstrates the limits of American federalism in private law.  While the textbook theory of American federalism is that states have unfettered discretion to adopt varying legal regimes subject only to minimal federal interference in select areas, in practice, significant differences in private law between states in the face of a mobile and regularly interacting populace are very difficult to sustain.  A regime in which some states had gay marriage, and others did not, posed difficulties when, for example, the military allowed gays to serve, the Social Security administration tried to follow state law, and federal tax law and immigration law provisions dependent upon marital status had to be applied.  The U.S. Supreme Court's Windsor decision, which struck down the "Defense of Marriage Act's prohibition on federal recognition of gay marriages conducted in states where it was legal forced the federal government to recognize gay marriage at least some of the time, and once it did so, the ability of gay couples to marry in states that recognized gay marriage, even if they lived in states that did not, had already created an intractable problem to administer.  Even if the Supreme Court had decided to strike down merely the exemption from the full faith and credit clause in the Defense of Marriage Act and not struck down the ability of states to decide what marriages could be entered into in their own states, the effect would have been almost the same.

* In a sudden tipping point moment in the wake of a white supremacist's murder of nine black people having a prayer meeting at a historic AME church in Charleston, South Carolina, state officials in South Carolina, Alabama, and other states throughout the South are finally taking action to remove Confederate flags and symbols of Confederate leaders (mostly put in place in the 1960s as part of a backlash against the Civil Rights movement).  National park officials are following suit.  Major national retailers, including Wal-Mart, Amazon, Sears and K-Mart are moving Confederate flag products from their shelves.  Former Republican Presidential candidate Mitt Romney acknowledge that the Confederate flag is a symbol of support for racism that must come down and other Republicans have followed suit.

While the changes are mostly symbolic, they disavow almost half a century of public support at the highest level for racist right supremacists across the South, undermining their movement culturally, and signaling, 150 years later, we may finally be at the point where William Faulkner's quote, "The past is never dead.  It's not even past.", may no longer apply to the Civil War, which is still not forgotten but perhaps is finally over.

* Medical marijuana is no longer a crime in almost half of the U.S. states.  Recreational marijuana use is now legal and regulated under state law in Colorado, where I live, and in Washington State, and is decriminalized or likely to be legal and regulated, in a few more.  Marijuana continues to be a crime under federal law for both medical and recreational purposes in every state, but the Obama administration's U.S. attorneys have acquiesced to state preferences by not prosecuting marijuana offenses that are legal under state law with a few exceptions, despite their clearly established legal authority to do so under the Supremacy Clause and case law interpreting it in the marijuana law context.  The change in public opinion about marijuana that state legalization or partial legalization has brought about has also created a strong risk of jury nullification in every marijuana offense prosecution, particularly in states where it is legal and widespread under state law.

More generally, states and the federal government are gradually repealing laws that have given the United States the world's highest incarceration rates, the toughest treatment of juvenile offenders, and the most intensive use of prolonged solitary confinement.  The U.S. Supreme Court's other decision today invalidated on a 6-3 vote, a major portion of the Armed Career Criminals Act which is one of the main mandatory minimum federal sentencing laws, for being void for vagueness (the vote to decline to apply the ACCA to the particularly offense of the offender before the Court was 8-1). Not long ago, Supreme Court has struck down juvenile life without possibility of parole sentences, at least prospectively, and a decision last week invited challenges to prolonged solitary confinement practices.

A series of high profile cases of alleged police uses of excessive force, which rose to national prominence following the shooting of an unarmed black teenager in Ferguson, Missouri by a policeman led to massive, prolonged protests, and serious state and federal investigations that produced real change and has prompted more aggressive treatment of similar incidents and policy changes elsewhere.

* President Obama has issued executive orders that have paused deportations for large numbers of undocumented immigrants who might be eligible for legalization of their status under future laws in the face of stalled legislative efforts.

* Congress passed and President Obama signed Obamacare (the Affordable Health Care Act or ACA), a couple of years after he was elected and this law has slowed health insurance cost inflation and dramatically reduced the number of uninsured people in the country, despite fierce opposition from Republicans.  The issue was central in the successful GOP effort to retake control of the U.S. House of Representatives and was an important part of their ultimate success in securing a majority in the U.S. Senate in the 2014 elections.  The U.S. Supreme Court rejected a challenge to that law (the most recent of several) based on its shoddy drafting, that would have crippled it yesterday in a 6-3 vote.

Increased availability of long term contraception, among other factors, have greatly reduced teen pregnancy rates.

Despite Congressional inaction, a strong labor market, grass roots activism, and state legislation, has pushed up the minimum wage and pay for low income retail and fast food workers across the country.

* The D.C. Circuit Court of Appeals has dramatically constrained the ability of the federal government to use Military Commissions, as opposed to civilian courts, to prosecute suspected terrorists.  The number of persons detained at Guantanamo Bay has likewise steadily declined despite strong Congressional efforts to thwart President Obama's ability to deliver on his promise to shut it down.  

Other Presidential and legal action to unwind draconian policies of the George W. Bush administration in the war on terrorism have been a mixed bag.  The authority of the president to indefinitely detain suspected terrorists as "enemy combatants" subject only to minimal habeas corpus review, and of the President to order the targeted killings of suspected terrorists has survived.  The administration has also continued to advocate for intrusive spying measures that impair privacy.  But, the administration ended the Iraq War (only to reengage at present to fight ISIS and support rebels against the chemical weapons using regime of Syria), and is tapering down our involving in the civil war in Afghanistan against the Taliban.

But, revelations of NSA data collection from U.S. citizens whose scope far exceed what the American public had been told, has resulted in major policy changes narrowing that authority from Courts and Congress fueled by an unlikely coalition of pro-civil liberties liberals who distrust national security agencies operating in secrecy and anti-government libertarian leaning conservatives.

* The proportion of Americans who identify as non-religious has rapidly surged to record levels, while the number of proportion of Americans who identify as Christian has reached record lows.

* The federal judiciary has more Democratic appointees, after six and a half years of President Obama's tenure, than it has had in a long time.

"As of June 11, 2015, the total number of Obama Article III judgeship nominees to be confirmed by the United States Senate is 311, including two justices to the Supreme Court of the United States, 53 judges to the United States Courts of Appeals, 254 judges to the United States district courts, and two judges to the United States Court of International Trade. The number of nominations currently awaiting Senate action is 18. There are currently 9 vacancies on the United States Courts of Appeals, 45 vacancies on the United States district courts, 4 vacancies on the United States Court of International Trade and 22 announced federal judicial vacancies that will occur before the end of Obama's second term."

The balance of power by the party of the President who appointed the federal judge is as follow (Democrats first, Republicans second, vacancies third).  None of the existing vacancies will change the balance of power on any of the existing circuit courts, although announced judicial vacancies could conceivably tip the balance.

SCOTUS 4-5-0
13 Circuit Courts of Appeal Combined 94-76-9

1st Cir. 4-2-0  Dem.
2rd Cir. 8-5-0 Dem.
3rd Cir. 8-5-1 Dem.
4th Cir. 10-5-0 Dem.
5th Cir. 5-10-2 GOP
6th Cir. 5-10-1 GOP
7th Cir. 3-6-2 GOP
8th Cir. 2-8-1 GOP
9th Cir. 20-9-0 Dem.
10th Cir. 7-5-0 Dem.
11th Cir. 8-3-1 Dem.
D.C. Cir. 7-4-0 Dem.
Fed. Cir. 7-4-1 Dem.

* The media widely acknowledges that global warming is real.  Renewable energy usage has surged, and a wide variety of hybrid, plug in electric and alternative fuel vehicles are now available.

Strikes Still Very Rare In U.S. In 2014; Colorado Unionization Rate Up

There were only 11 strikes involving 1,000 or more workers in 2014, which involved 34,000 workers in all.  This was the second lowest rate of significant strikes by labor unions in recorded history after 2009, in which there were only 5 strikes involving 1,000 or more workers, which involved just 13,000 workers.

In Colorado, total union membership (representation by unions) rebounded from a low point of 6.6% (8.0%) in 2010 to 9.5% (10.7%) in 2014.  This is dramatic progress in just four years.  There are currently 221,000 union members in Colorado and another 29,000 employees in Colorado who aren't union members but are represented by unions in a union shop.  In the private sector in Colorado in 2014 membership (representation) was 7.4% (8.0%), and in the public sector it was 19.9% (24.6%).

Nationally, in 2014, the private sector 6.6% (7.4%) of employees were members of unions (represented by unions), while in the public sector  35.7% (39.2%) of employees were members of unions (represented by unions), with both percentages generally tending to fall over the previous decade.

Within the public sector, nationally, union representation rates are highest with local government employees (45.5%), intermediate with state government employees (32.8%), and lowest with federal employees (31.6%).

Thus, Colorado's private sector unionization rate exceeded the national average in 2014, but its public sector unionization rate was substantially below the national average.  About two-thirds of Colorado union members are in the private sector, and about 60% of people represented by Colorado unions are in the private sector.

Public employees rarely have the right to strike, but also rarely need the job security protections provided by traditional private sector workers who would otherwise be "at will" employees.