It's useful that the Rocky Mountain News wrote an editorial on Colorado State Senate Bill 10.  It is hard to imagine a worse bill for Colorado than SB 10. 

It would have been nice if the Rocky had done more than a milquetoast editorial.  It would have been even nicer, and more responsible if the Rocky had read past the summary, which leaves important features out.

Compare the information provided in the next post down to the information that the Rocky provided. 

I worked hard for Bob Beauprez this last election only to see Bill Ritter woo away what should have been Republican constituencies with false promises of "moderation."  Now I sit here and laugh as, one by one, they get their comeuppance. 

Most delicious of all, the Democrats aren't being gentle.  No lubricant is being applied to the pole.  Vlad the impaler would be proud.

Today, I am laughing at the health care industry.

State Senator Lois Tochtrop has scored a twofer.  She is rewarding the nursing unions and giving the lawyers carte blanche to sue hospitals with Senate Bill 10, a bill "Concerning Nurse Staffing Levels in Hospitals."

"Each hospital in the state shall appoint a staffing committee to assist in the development and implementation of a staffing plan for the hospital.  At least one-half of the members of the staffing committee shall be Registered Nurses currently providing direct patient care in the hospital.  If the Registered Nurses employed by the hospital have elected a collective bargaining representative, the Registered Nurse representatives on the staffing committee shall be selected by the collective bargaining representative.  Participation in the staffing committee shall be considered a part of the employee's regularly scheduled work week."

This bill is a disaster for Colorado's health care industry, which makes it a disaster for all of Colorado.  Hospitals are a business.  No business can survive if it cannot control labor costs. 

Recent examples of businesses which allowed unions to "manage" their labor policies for them are the "big three" automobile companies in the 50's, 60's, 70's, and 80's and Delta Air Lines which was bought by its pilots unions.  Delta is in Bankruptcy.  Chrysler is owned by a German company.  Ford lost $5 Billion in the last quarter.  At one time General Motors was the largest corporation in the world and had a 50% share of the US auto market.  It is a shadow of its former self.  This catastrophe was brought on by a management that willingly accepted disadvantageous labor agreements and policies.

Everyone but the American consumer paid a price for these companies unwillingness to stand up to labor.  Labor and investors lost when the companies downsized as the consumer found foreign products.

The Democrats should have learned a lesson from this.  This bill proves that they did not, and it proves it in spades.  From the day this bill is passed, no Hospital management in Colorado will be in a position to control its labor costs. 

Going further, once these staffing plans are adopted, deviations will be subject to fines of $5,000 per day.  Since it will be impossible to always meet the staffing plan, lawyers will use a hospital's failure as another club in litigation.  This bill imposes detailed daily staffing reports to be kept by hospitals.  It even encourages staff to report on hospitals which don't meet their staffing plan, a nice police state touch.

It gets worse.  The costs this bill imposes on hospitals will and must be passed on to insurance carriers as patients rotate through the system.  Once again, the business community (which also supported Ritter as a "moderate") will be asked to pick up the tab. 

This is a cost that the Federal Government (Medicare) won't pick up, which will weaken all of Colorado's health care system.

How could a worse bill for all of Colorado than this one be designed?  I am confident that we will find out, given the kind of legislature and governor we have elected.

I filed this story under "immigration."  I couldn't help myself, what with the kind of weather we are having during this winter of global warming.  You know, the one with four foot drifts in the southeastern part of Colorado.

The Rocky Mountain News is reporting that a deer herd has moved into Broomfield, posing a danger to motorists.

You bet they pose a danger.  20 years ago, I hit a deer.  I was going 5mph on an icy road.  The deer just stood in the middle of the road until I hit it.   I didn't even knock him down, but he did $400 in damage to my car.

For those watching Colorado House Bill 1072 fly through the Colorado Legislature, take heart.  The Labor folks are trying to do something similar in Congress, but admit it won't go far.

The Washington Times is reporting that California Democrat Representative George Miller is proposing "The Employee Free Choice Act" [which] would allow workers to unionize by simply signing a card or petition stating their interest in joining the union, as opposed to the decades-old practice of secret-ballot elections. 

If a majority of employees sign, the employer would be required by law to recognize and bargain with the workers' union.

The good news is that it will likely die in the Senate for lack of 60 votes.  The Times speculates that Bush would veto it if it got to his desk, but given his record, that is a forlorn hope.

This is a question that I sincerely hope will make the lawyers in the legislature think hard about inserting the so-called "safety clause" in a bill when it cannot clearly be shown to impact "public peace, health, and safety." 

The "safety clause" is a mechanism that is used by legislators to protect legislation from any attempt by the citizens to overturn it through an initiative.  It is usually attached at the end of a bill by the author and reads"

"Safety Clause:  The General Assembly hereby finds, determines, and declares that this act is necessary for the public peace, health, and safety."

Senate Bill 46, Sponsored by State Senator Ken Gordon, an "Agreement Among the States to Elect the President by Nationwide Popular Vote" doesn't appear to be a health issue.  Likewise, there is no law enforcement component to the law which would seem to rule out any "public peace or safety" issues.  In fact, since it may not go into effect for years, if ever, it doesn't qualify as any kind of "emergency" in the common usage of that word.

Did Senator Ken Gordon practice deception and thus violate his legal ethics code by appending the safety clause onto that bill, and would any lawyer-legislator who voted for it also be violating his ethics code?  You be the judge.  We almost certainly won't hear from John Gleason or his minions at the Office of Attorney Regulation. The Colorado Rules of Professional Conduct state:

Rule 8.4 Misconduct

It is professional misconduct for a lawyer to:

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

This essay examines for truthfulness Colorado State Senator Ken Gordon's arguments for his Senate Bill 46, "Agreement Among the States to Elect the President by Nationwide Popular Vote."

1. Currently, almost all states are taken for granted or ignored by presidential campaigns, because they are not "in play" and the winner-take-all method of allocating votes makes it irrelevant whether a candidate wins a state by taking 55 percent of the vote or 65 percent. The only states in which campaigns advertise, poll, spend money or visit are "battleground states." In 2004, 76 percent of campaign spending and candidate visits were confined to just five states - Ohio, Florida, Minnesota, Iowa and Pennsylvania. If every vote counted equally, then campaigns would have to run truly national campaigns.

What Senator Gordon doesn't want you to think about is that his system would merely shift the emphasis of the campaigns.  In a popular election, rather than an electoral election, the emphasis would be on population centers.  Instead of Ohio, Florida, Minnesota, Iowa and Pennsylvania, selecting our President, it would be strictly the east coast and the west coast.  Substitute New York and California for Ohio, Florida, Minnesota and Iowa. 

A vote in Limon or Grand Junction would count as much as a vote in Houston or Philadelphia. Instead of campaigns being distorted to address issues that are of particular relevance to the "battleground states" like trade with Cuba in South Florida or ethanol in Iowa, the campaigns would have to address national issues.

A vote in Limon or Grand Junction already counts for more than a vote in Houston or Philadelphia because the electors corresponding to senators are spread more thinly in Texas and Pennsylvania.  If Gordon had wanted to be truthful, he would have said "this bill makes a vote in Philadelphia count as much as a vote in Limon."

2. Although it has happened only once in the last 118 years, under our current system the candidate who receives the largest number of popular votes might not win the election. This discrepancy is caused by the winner-take-all method used by 48 states, which fails to accurately reflect the level of a candidate's support. The president leads us in war, makes decisions that affect the economy, education and taxes. The president should be the person most Americans support.

Senator Gordon's system almost ensures that the United States will have multiple parties.  If he really wants the President to be "the person most Americans support," he shouldn't be trying to set up a system where the President is the person who can capture 27% of the vote and win the popular vote.  That is exactly what will happen with his system.

3. Currently, small states have a disproportionate number of electoral votes. (Colorado, however, is not a small state anymore. We have a slightly larger percentage of the popular vote than we do of the Electoral College. This discrepancy will increase as Colorado's population increases faster than the national average.) Even if you support it, the advantage that small states have is illusory. Because of the concentration on the "battleground states," almost every small state and the issues important to them are completely ignored by presidential campaigns.

Until a state has 12 or more electoral votes, it is a small state.  Colorado has 9.  There are 51 "states" and 578 electoral votes. meaning that a state that has fewer than 11.33 electoral votes doesn't qualify as a large state.  I have no idea where Gordon learned math, but he needs a refresher. 

Again Gordon is trying to imply that the politicians will not pay attention to the population centers to the expense of the small states.  The fact is that he wants small states to surrender the advantage that they gained at the Constitutional Convention, but he isn't honest enough to admit it.

The bill follows the Constitution. The winner-take-all method of distributing electoral votes is not in our founding document. Article II, Section 1, Paragraph 2 gives to the state legislatures the authority to decide how electors are chosen. Senate Bill 46 abides by this provision.

Three Sentences, all true.  However, when the US Supreme Court told the Florida Supreme Court that it had no (US) Constitutional authority to make the rules, you can bet that Senator Gordon didn't agree.  He and others in his party continue to make mischief because of the outcome of that election, and SB 46 is simply more mischief.

Senate Bill 46 would result in the president of the United States being the person who gets the most votes for that office. The governor of Colorado is the person who receives the most votes in Colorado. The president of the United States should be the person who receives the most votes in the United States.

Again true.  Think of the possibilities:  President Ross Perot, Jesse Ventura, Strom Thurmond, George Wallace, and any future demagogue who can get over 25% of the popular vote.  Even the electoral college doesn't prevent multiple candidates, but years like 1860 are the exception.  Under this law, they would become the rule.

This past weekend the Rocky Mountain News published a Point-Counterpoint set of articles by State Senator Ken Gordon and State Senator Shawn Mitchell on Gordon's proposal to emasculate the electoral college via Senate Bill 46. 

It is clear that I have not recruited Senator Mitchell as a reader of this blog.  If I had, or if he had simply googled the subject, he might have discovered and used two arguments that I have used.

The first is that in many states, not all votes are counted unless the race is close enough to be affected by them.  For example, in the 2000 California presidential race, 500,000 absentee ballots were not counted because even if every one had gone to Bush, it would not changed the outcome of the electors. 

State Senator Gordon is fully aware that absentee ballots traditionally go Republican and he is hoping that Republican votes are not counted so that his party can steal an election with the mechanism he proposes. 

Colorado and other states that sign onto this scheme have no capability of forcing every state to count their absentee ballots, so this issue cannot be fixed.

Second, while the legislatures have some power under the Constitution to set the method of  elector selection, it is not at all clear that it can cause electors to be chosen as directed by events outside the State.  This law assigns Californians and New Yorkers more rights to select Colorado presidential electors than it assigns to the citizens of Colorado.  Is that what we want?  Is that something that the US Supreme Court would even allow given that these electors are Federal Office holders, even if only for a few minutes.

There are other arguments that I haven't made. 

One is that the electoral college is the mechanism that dictates that we have a two party, rather than a multi-party system.  Do we really want to make it possible for there to be four, or even six parties, all contending to win the popular vote without regard to state boundaries?  This bill makes it possible for any minor party with a well known candidate or well funded candidate to become President without requiring that he/she has a national base.

Conversely, this bill also has the potential to disenfranchise voters who might like to vote for a candidate but whose state won't put him/her on the ballot.  Thus, it would advantage the major parties to encourage and even fund minor party candidates who appeal to the other party's voters.

Like so many of Senator Gordon's other hair brained schemes, this bill has so much potential for mischief and is so poorly thought out that it should quickly be abandoned.

That's what Senator Shawn Mitchell could have, and should have said.

I usually take light reading when I go on long plane trips.  This time it was David Baldacci's "The Simple Truth."  The hero is a criminal defense attorney.  On page 200 of the paperback version he says: 

"Sometimes the truth is a lawyer's biggest enemy.  You can't spin it.  Nine times out of ten, with the truth, I lose."

The book is a good one.  I recommend it. 

It is a shame that lawyers and courts are more interested in the process than in the truth.

Well, I'm bacccccck.

The wedding was a very nice affair.  The family was pleased that we came.  Just as 90% of politics is showing up, 90% of family is showing up. 

We were in an older beach front hotel in Daytona Beach, not that far from where the three tornadoes touched down.  The weather was overcast, windy, and about 60 degrees.  60 degrees in Florida is much more unpleasant than the 40 degree weather in Colorado we encountered when we got back.  No one was dumb enough to be on the beach or in the pools.

The hotel had no internet, so I have some catching up to do.

This blog will go silent for a few days as I slip off to Florida to see a Great Niece tie the knot.  At this writing, I'm not sure if the weather will cooperate.  The weather forecasters are bracing Colorado for the eighth weekend snowstorm in a row (unless I have lost count).  The trip is so short that if the plane is grounded in Denver, we plan to blow the trip off.

Colorado is having its coldest and snowiest winter in years.  Global Warming?  Not this year, here. 

NRO's Bench Memos feature has a new sub-feature that students of Constitutional history will find worth while.   Matthew J. Franck is doing "The Perennial Publius."   He takes one quote a day and writes a blurb on it.

Of the first nine that he has done, starting January 22, he has suggested tattooing two (3 & 7) on the forehead of Senator James Webb, one in mirror image so that Webb will be able to read it as he shaves in the morning.
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By the way, if you ever want to purchase a copy of the Federalist papers, make sure you get all of them.  Liberal editors have been known to "abridge" them to remove second amendment arguments.  They don't make what they are doing obvious, either.

William Arkin pulled a coup yesterday.  He wrote something obnoxious and the whole conservative world went nuts. 

If you want to shut him up, don't feed his ego.  Don't visit his site.  Just ignore the poor guy.  Move on.  Above all, don't post anything on his blog.

Rush gave him a million dollars worth of publicity today.  I wish he hadn't.

If you want to object, write a calm and short letter to the Washington Post.

Note that I am not linking his blog.  That is intentional.  A link is a vote of approval.

I spent much of the day writing a guest editorial for the Gazette Telegraph.  It is hard to blog and try to do something like that at the same time. 

It was unsolicited, so they may not publish it.  If they don't, and even if they do, I will publish it here in two weeks.

The subject was blogging.  One of the points I tried to make was that conservative MSM tries to downplay blogs and pretend they have no influence while the liberal MSM promotes liberal blogs.
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One of my projects is to act as a miniature Republican version of Colorado Media Matters.  I am pleased to report that I found no examples of biased Democratic reporting in either the Denver Post or the Rocky Mountain News today.
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Last night I watched the PBS show on the US Supreme Court, or at least the first half.  I thought it was outstanding.  Its coverage of Marbury vs. Madison was exceptionally enlightening.  

I didn't know that Congress had ordered the Supreme Court not to meet for a year, and the Court obeyed.  Contrast that with Congress' attempt to simply withdraw jurisdiction on Hamdan-did the five lawless justices obey that, as they should have?

After watching that show, I have much, much more respect for John Marshall.

Immediately below this essay is an unpublished opinion by the Colorado Court of Appeals.  It concerns a request by a citizen to have three people prosecuted for perjury.

On its face, the decision sounds quite reasonable.  After all, the prosecutor conferred with two other prosecutors and assigned an investigator before deciding not to prosecute.  He chose not to prosecute because the case was complicated and he thought he might not win.

The problem is that you could have a convention of Colorado prosecutors and assistant prosecutors, and ask how many have prosecuted ANY case of civil perjury in the last five years.  My bet is that you would be very lucky to see five hands go up in a roomful of more than a hundred prosecutors, and that isn't five prosecutions a year, it is five prosecutions in five years in all of Colorado.

That fact makes the court's reliance on the judgement of three, or even three hundred prosecutors that the case was unwinable a thin reed, indeed.  Prosecutors don't win perjury cases because they fear trying to win them.  It is a form of judicial cowardice.

The court admits that at least one of the district judges who looked at the evidence thought that the perjury case was viable.

By making the decision this court made, the three judges involved, Chief Judge Janice B Davidson, and Judges Hume and Pierce ceded the courts to the criminals and the crooked lawyers who use perjury to steal from the public. 

Once again, lawyers protect judges, judges protect lawyers, but no one protects the public.

I expect to be writing more on this subject when I can get more information.

My frequent correpondent has been kind enough to provide an unpublished Colorado Appeals Court opinion.  I think ordinary Colorado Citizens should be disturbed by it, as it endsorses the decision of a lower court not to require a District Attorney to prosecute perjury.  Because it is longer than I like to make my usual essays, I will make my comment in another post. 

Note, however, that I have highlighted one paragraph in which the appeals court admits that there was evidence of perjury, but argues that that wasn't the question they were asked to decide.

COLORADO COURT OF APPEALS
________________________________________________________________
Court of Appeals No. 02CA2170
Arapahoe County District Court No. 01CV1305
Honorable Timothy L. Fasing, Judge
Honorable David D. Parrish, Judge
________________________________________________________________
James W. Burneson,
PlaintiffAppellant,

v.

Deputy District Attorney of Arapahoe County, John Jordan,
DefendantAppellee.
________________________________________________________________

JUDGMENT AFFIRMED
Division A
Opinion by JUDGE PIERCE*
Davidson, C.J., and Hume*, J., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(f)

March 18, 2004
________________________________________________________________
James W. Burneson, Pro Se
James J. Peters, District Attorney, Richard H. Bloch, Chief
Deputy District Attorney, Centennial, Colorado, for Defendant-Appellee
*Sitting by assignment of the Chief Justice under provisions of
Colo. Const. art. VI, § 5(3), and § 24511105,
C.R.S. 2003.

Plaintiff, James W. Burneson, appeals a judgment declining his request to require defendant, John Jordan, Deputy District Attorney of Arapahoe County, to prosecute certain alleged criminal conduct. We affirm.

Plaintiff filed a complaint pursuant to § 165209, C.R.S. 2003, alleging that defendant had improperly declined to prosecute three individuals for alleged perjury committed during a series of civil trials. Plaintiff sought an order from the trial court compelling defendant to file “appropriate charges . . . against the accused.”

The matter proceeded to a hearing in which plaintiff called a series of witnesses including two judges that presided over the trials in which the alleged perjury occurred. After hearing the evidence, the trial court concluded that plaintiff had failed to demonstrate that defendant acted arbitrarily or capriciously in declining to file criminal charges against the three individuals. Consequently, the trial court denied plaintiff’s requested relief.

Plaintiff contends that the trial court erred or abused its discretion in declining to require defendant to file criminal charges in the matter. We disagree.

Section 165209 provides in pertinent part as follows:

The judge of a court having jurisdiction of the alleged offense, upon affidavit filed with the judge alleging the commission of a crime and the unjustified refusal of the prosecuting attorney to prosecute any person for the crime, may require the prosecuting attorney to appear before the judge and explain the refusal. If after that proceeding, based upon the competent evidence in the affidavit, the explanation of the prosecuting attorney, and any argument of the parties, the judge finds that the refusal of the prosecuting attorney to prosecute was arbitrary or capricious and without reasonable excuse, the judge may order the prosecuting attorney to file an information and prosecute the case or may appoint a special prosecutor to do so.

Section 165209 is intended to permit citizens to establish through general adversary processes that a criminal proceeding should be initiated by either the district attorney or a special prosecutor. See Feigin v. Colo. Nat’l Bank, 897 P.2d 814, 819 (Colo. 1995); see also Dohaish v. Tooley, 670 F.2d 934, 937 (10th Cir. 1982)(purpose of § 165209 is to allow persons who believe that a prosecuting attorney is not pursuing a case with diligence to petition the court to review the status of the case).

The party challenging a district attorney’s charging decision under § 165209 must overcome the presumption that the prosecutor acted in accordance with the law. Landis v. Farish, 674 P.2d 957, 959 (Colo. 1984). This presumption arises from the fact that a district attorney has broad discretion in determining what criminal charges should be prosecuted. See Sandoval v. Farish, 675 P.2d 300, 302 (Colo. 1984).

Unless there is clear and convincing evidence that the district attorney’s decision not to prosecute was arbitrary or capricious and without reasonable excuse, the district court should not order prosecution and thereby substitute its judgment for that of the prosecutor. See Landis v. Farish, supra.

Here, plaintiff alleged that three individuals gave knowingly false testimony concerning a sale and leaseback real estate transaction. Specifically, he alleged that the individuals gave false testimony concerning the purchase price of the office unit that was the subject of the transaction. Arguments between plaintiff and the individuals regarding the purchase price and precise nature of the transaction were the subject of three different civil trials and resulted in inconsistent findings and judgments from different trial court judges.

At the hearing, plaintiff relied heavily on the fact that in the third civil trial involving the sales transaction, the trial court found that the individuals’ testimony in the first civil action had been intentionally misleading. However, the issue before the trial court under § 165209 was not simply whether the individuals had presented misleading testimony or even whether such testimony amounted to perjury. Rather, the critical inquiry in this action was whether defendant’s decision not to file criminal charges was arbitrary and capricious. See Landis v. Farish, supra.

Substantial evidence presented at the hearing supports the trial court’s determination that defendant’s decision not to prosecute was neither arbitrary nor capricious. This included evidence that after receiving plaintiff’s complaint, defendant assigned the matter to an investigator. The investigator then met with plaintiff and plaintiff’s attorney in the civil cases, reviewed the transcripts of the civil cases, and met with three different district attorneys, including defendant, all of whom decided that the office should not file criminal charges.

At the hearing, both defendant and another district attorney assigned to consider plaintiff’s allegations, testified that they reviewed the civil trial transcripts plaintiff submitted and concluded that criminal charges should not be brought. This decision was based in part on the somewhat confusing nature of the transaction in question and the fact that two judges had reached different decisions on the issue. Ultimately, both defendant and the other district attorney decided against prosecution because they did not believe there was a reasonable probability of success in obtaining a conviction. Thus, the evidence established that defendant and the district attorney’s office gave proper consideration to plaintiff’s allegations.

Plaintiff argues that the trial court did not properly consider the evidence because, in reaching its decision, it did not review the entire transcripts from all three civil trials and two depositions. We reject plaintiff’s implicit argument that such a review was necessary for the trial court to reach a decision. We further note that during the hearing, the trial court repeatedly allowed plaintiff and plaintiff’s witnesses to read various portions of the civil trial transcripts which plaintiff believed were most relevant. Thus, contrary to plaintiff’s contention, we conclude that the trial court adequately considered the evidence presented at the hearing.

In sum, the evidence established that both defendant and the district attorney’s office gave due consideration to plaintiff’s request to prosecute the matter and, based upon legitimate discretionary factors, decided against filing criminal charges. We agree with the trial court’s conclusion that plaintiff failed to present clear and convincing evidence that defendant acted arbitrarily or capriciously in declining to pursue prosecution. Consequently, we perceive no error in the trial court’s decision to deny relief pursuant to § 165209. See Landis v. Farish, supra.

The judgment is affirmed.

CHIEF JUDGE DAVIDSON and JUDGE HUME concur.