Unneeded Laws 1997

No. 2-97
January 14, 1997

Unneeded Laws 1997

by Jerry Kopel & David B. Kopel

Every year, Colorado Revised Statutes consume more and more space on bookshelves. Too often, Colorado legislators measure their achievement by how many new laws are added to the statute books. In fact, removing unneeded laws is often as important as enacting new laws. While a few laws listed here are obsolete or contrary to decisions of the highest courts, the vast majority are simply unneeded

Here then, is a list of Colorado laws or portions of laws that could be removed from the statute books without harm. Not modified, improved, or revised. Just repealed as impediments to civil liberty, economic freedom, local decision-making, or other important values.

Of course this short list is hardly a complete guide to every law that merits repeal. We will update this list next year, adding additional subject areas.

Last year, two laws discussed in the 1996 edition of this Issue Paper were repealed: Article 57 of Title 7 (farm associations), and 7-45-102 (toll roads).

Elections, Title 1

Petition gathering: CRS 1-4-905(1) mandates that petition circulators may only gather petitions in the political subdivision in which they live. There is no good reason to prevent a college student from Boulder from gathering petitions in Jefferson county.

Wagers with voters: CRS 1-13-110 and 31-10-1531 makes it a crime for anyone to bet with a voter about the outcome of an election. Social gambling is not an offense under CRS 18-10-102(2)(d). If the wager is not social gambling, it is already a crime, without need for a separate listing under CRS 1-13-110.

Anonymous statements concerning candidates and issues: CRS 1-13-108 and 31-10-1521.5 criminalize anonymous publication of election literature. A similar Ohio law was declared unconstitutional by the United States Supreme Court in 1995 in the case McIntyre v. Ohio. Colorado has a separate statute, CRS 1-13-109, dealing with false statements; this statute remains valid under the Supreme Court decision.

Statutes That Give Unfair Advantage To One Business Over Another Business, Titles 6 & 35

There are several laws in this category, quite recent, pushed by one set of lobbyists against another set of lobbyists:

Article 13 of Title 6 interferes with contract rights between restaurants that play music and the copyright owners of the music.

Article 15 of Title 6 interferes with contractual rights between artists and art dealers.

Article 38 of Title 35 interferes with contractual rights between farm equipment dealers and their suppliers, manufacturers and wholesalers.

Professions and Occupations, Title 12

Attorneys: CRS 12-5-102. The statute states that race or sex shall not disqualify anyone from a license to practice law. This law made sense when originally enacted to avoid discrimination against women and blacks. Today, no licensing law includes such language because other state and federal statutes cover such discrimination.

Sunday Closing Law: CRS 12-6-301 to 303. This is one of the few blue laws remaining on Colorado statute books. It forbids the sale of cars on Sunday, even though that is an ideal consumer purchasing day for most working people. The Sunday closing law is on the books at the behest of the car dealers themselves (as long as all are forbidden to sell.)

Commercial Driving Schools: Article 15 of Title 12 informs the schools of what equipment they must have and what regulations they must follow. Excluded from this law are secondary schools, institutes of higher education, programs under the private occupational schools division, or motorcycle operators safety training programs. Choices of driving schools should be that of the consumer who has to show at the time of obtaining a driver’s license whether he or she is competent to drive.

Public Dance Halls: Article 18 of Title 12 prohibits a place where public dances are held from operating without a license from the board of county commissioners of that county. If this law is repealed, the issue becomes a matter of local concern. County commissioners can impose whatever controls on dancing they want, or they can allow dance halls to operate without need for a county permit. Some county commissioners would likely conclude that they have better things to do than issue permits for square dancing.

In 1996, the County Commissioners Association opposed repeal of this law by claiming that "repeal would allow topless dance halls." The claim is illogical. If the state mandate for county licensing is repealed, counties are free to act as they choose. The repeal does not affect a county’s authority to regulate or ban topless dancing. The repeal simply says that counties are not required to license dance halls.

Escort Services: Article 25.5 of Title 12. This law was originally passed as a prostitution prevention statute. It requires the governing boards of towns, cities, or counties to establish by regulation the licensing of escort services within their jurisdiction if a request for an escort service is made to that locality.

The statute also sets the maximum rate that can be charged by the locality to the licensee. If repealed, the issue becomes a matter of local concern and each locality can determine if it wants to license, or to outlaw, or to allow non-licensed escort services.

Eating or Sleeping With Intent to Defraud: CRS 12-44-102 to 104, is a specific crime with a specific penalty relating to hotels and public eating places. But it is also a crime under CRS 18-4-401 dealing with theft and 18-5-205 to 207 when using a check. In both cases the legislature decided crooks should go to the state penitentiary if the value of the property was $400 or more.

But that does not happen if the crook eats in a restaurant or sleeps in a hotel. Then you get to go to the state pen if your food bill or hotel accommodation happens to be $50.01. Culprits should be punished on the basis of the value of property taken and not from where it was taken.

No champagne cork popping on Christmas Day? CRS 12-47-128 (5) (c) (1) (D) provides that no alcoholic beverage shall be sold, served, or distributed in a sealed container on Christmas Day. (A sealed container is defined in CRS 12-47-103 (23) as a container or receptacle used for holding liquor, which container or receptacle is corked or sealed with any stub, stopper or cap.)

Forfeiture by Innocent Persons: While Article 47 of Title 12 is not Colorado’s regular forfeiture law, CRS 12-47-134 states: "There shall be no property rights of any kind in any alcoholic liquors, vessels, appliances, fixtures, bars, furniture, implements, wagons (wagons?), automobiles, trucks, vehicles, contrivances, or any other things or devices used or kept for the purpose of violating any of the provisions of this article." CRS 12-47-134 should be repealed to at least allow innocent persons the few rights allowed under forfeiture laws in Parts 3 and 5 of Article 13 of Title 16.

Caveat: While not part of our repeal reporting, all of our state liquor laws are outdated, duplicative, conflicting and extremely hard to comprehend. Articles 46 and 47 of Title 12 should be redone as part of a major statutory revision so that the average person of normal intelligence can comprehend the meaning of these laws.

Licensing merchants, theaters and circuses under Article 51 of Title 12. This statute requires county commissioners to license merchants, theaters and circuses. Excepted are merchants selling produce, provisions or mining tools. The license shall cost between $5 and $100. If you sell without a license, the penalty is up to six months in the county jail. If repealed, county commissioners can determine whether or not they need to license stores.

Criminal Proceedings, Title 16

Illegally seized evidence allowed in court: CRS 16-3-308 allows courtroom use of evidence that has been seized in violation of the Constitution or of a statute, as long as the evidence was seized based on a "good faith" mistake. Admission of illegal evidence weakens the deterrent to illegal search and seizure, and also undermines the integrity of the judicial process.

Lab tests performed in secret: As recent revelations make clear, even the nation’s best crime labs may sometimes falsify or mishandle forensic tests, thereby creating "evidence" that may convict innocent people. For example, senior FBI chemist Frederic Whitehurst has testified under oath that administrators at the FBI crime lab have pressured forensic experts to commit perjury and to falsify test results in hundreds of criminal cases. One safeguard against negligent or deliberate errors is allowing a defendant’s attorney to be present while forensic tests are conducted, if the attorney’s observation will not interfere with the actual testing. But CRS 16-3-309(6), instructing courts when to admit forensic lab evidence, specifically forbids courts to take into account whether the defendant’s attorney was present—even if there is no good reason why the attorney should have been excluded.

Bail: CRS 16-4-105 encourages judges not to make bail available to persons accused (but not convicted) of certain drug crimes. Since the purpose of bail is simply to assure the presence of the defendant (who is presumed innocent) at trial, and not to impose punishment before conviction, these provisions should be dropped. Likewise, judges should not be able to require as a condition of bail that a defendant undergo any form of counseling or medical treatment. Such conditions may be an appropriate punishment after conviction, but are antithetical to the presumption of innocence before conviction.

Real property forfeiture for simple possession of drugs: CRS 16-13-303(1)(c)(II) authorizes the forfeiture of real property simply because someone on the property possessed any quantity of drugs for personal use (other than small quantities of marijuana). Forfeiture of an entire ranch, farm, home, or apartment building simply for personal possession of drugs is a punishment grossly disproportionate to the crime. Other parts of the statute provide for forfeiture of property that is used to facilitate drug sales. Unlike sale of drugs, mere possession of drugs cannot reasonably be considered a "public nuisance." The statute is also inconsistent with the United States Supreme Court’s 1993 Alexander v. United States ruling, which requires that forfeitures not be disproportionate to the underlying crime.

Forfeiture, Specific vs. General: Colorado’s public nuisance statute allows forfeitures for many specific offenses, including: prostitution, gambling, sale of drugs, simple possession of drugs without intent to sell, anything declared to be a public nuisance, fencing of stolen goods, sale of drug paraphernalia, child prostitution, sexual exploitation of a child, possession of aircraft without federal identification numbers, felony vehicular eluding, vehicular hit and run, or commission of a drive-by crime. Following this litany of forfeiture offenses, the statute then adds that any other property can be forfeited if allegedly "used in the commission of a felony." CRS 16-13-303(1)(b)(i). Given the vast amounts of behavior that has been felonized (i.e. failing to file an environmental report, possession of certain weapons without a permit, or second offense of what would otherwise be a misdemeanor), it is inappropriate to automatically allow forfeiture for any offense that has been classified as a felony.

Preventing property owners from raising valid claims in forfeiture cases: In normal litigation, each party may raise relevant claims against the other. For example, if the plaintiff sues the defendant for money owed, the defendant may sue back for damages caused by the plaintiff performing certain work improperly. But in a forfeiture case, property owners are specifically barred from raising legally relevant claims; the only thing they may ask for is the return of their property. CRS 16-13-307(11). Thus, if rogue police officers vandalize someone’s house while removing electronic equipment, the property owner may only ask for the return of the electronic equipment, and not for money to compensate for the vandalism. Accordingly, CRS 16-13-307(11) should be repealed.

Disposition of forfeited property: Currently, agencies which seize property are allowed to keep the property they take. This creates an enormous conflict of interest, and encourages agencies to focus on forfeitures to the detriment of other law enforcement activities. Accordingly, forfeiture revenues should be redirected to victim restitution, or to the general fund. CRS 16-13-314(d)(I) should be repealed.

Forfeitures without a specific court order: Courts have the authority to issue ex parte orders for the forfeiture of property. But the forfeiture statute also allows property to be forfeited even without any court order; all that is necessary is a search warrant, even if the search warrant application never raised the possibility of forfeiture. Forfeiture is even allowed when a police officer is simply conducting a lawful search or arrest without a warrant. Except in special circumstances, property should only be seized for forfeiture when neutral and detached magistrate has issued an order. Thus, CRS 16-13-315(1)(b) and (c) should be removed

Contraband Forfeiture Act: Part 5 of Article 13 of Title 16 is a forfeiture act from the 1980s, before the public became aware of the dangers of excessive forfeiture laws. As a result of the Foster-Johnson forfeiture reform bills enacted in 1992 and 1993, this part is now almost identical to the general forfeiture state contained in Part 3 of Article 13. Accordingly, this duplicative Part 5 should be repealed.

Reporting of Forfeited Property: CRS 16-13-701 requires agencies which carry out forfeitures to make written reports about the disposition of forfeited property. Subsection (2) exempts the Attorney General, the Colorado Bureau of Investigation, and the Department of Public Safety from making the reports. In their interests of accountability and full disclosure, the exemptions in subsection (2) should be repealed.

Health, Title 25

Smoking Restrictions: Article 14 of Title 25 imposes broad restrictions on smoking in public places, including businesses open to the public, thereby over-riding the right of property owners to determine what will be permitted on their own property. Since the article specifically allows localities to make even stricter laws, the entire article could be repealed, leaving localities to make their own rules, based on local conditions. [An argument could be made for statewide law to preempt local infringement on property rights, but this Issue Paper discusses only repealing old laws, not adding new laws.] Particularly suited for repeal is CRS 25-14-103.5, a complete ban on smoking on public school property. This interferes with local decision-making about the schools; there is hardly a statewide need for a law that prevents a high school principal from allowing faculty to smoke a cigarette in a faculty smoking lounge. The only provisions in article 14 that should not be repealed are those dealing with State of Colorado property.

Breast Cancer Screening Fund: Title 25, Article 4, Part 15. This law establishes a breast cancer screening fund for physical examinations, other medical tests, and a referral service "exclusively" for breast cancer. Why is the state duplicating the already extensive efforts of insurance companies and health care providers? Especially for a malady which is not contagious? Why does breast cancer qualify for a special subsidy? Why not prostate cancer, melanoma, or heart disease, all of which are also health problems which, like breast cancer, can be reduced through early detection and treatment?

Infant Immunization Act: Title 25, Article 4, Part 17. This law creates a program to have the state purchase vaccines and distribute them free of charge to practitioners who agree to provide them for no more than an "administrative" fee to be determined by the Department of Health. Also included are programs for handing out literature on vaccinations and collection of epidemiological data. The law was apparently written to allow Colorado’s participation in Mrs. Clinton’s program for a federal takeover of immunizations.

All available evidence suggests that out-of-pocket costs are not the cause of lower immunization rations. Britain saw immunization rates fall, despite free inoculations for the entire population. In the U.S., poor children already qualify for free immunizations under the Medicaid and "317" programs.

All the Colorado program does is eliminate the private sector distribution system, and hand it over to governments which have much less experience in handling time- and temperature-sensitive materials like vaccines. The problems surrounding the Clinton program have received wide coverage. According to Senator Dale Bumpers (D-Arkansas), by 1998 the Clinton vaccine program will have wasted seven billion dollars, without "immunizing one additional kid." Colorado should join other sensible states in leaving the program.

The reason that immunizations rates are not as high as they should be is not cost. The reason is parental apathy and disorganization. Programs which simply socialize the expense of vaccinations are, besides being a waste of money, a distraction from addressing the real cause of the problem.

Other Statutes

Home grown employees: CRS 8-2-120 holds governments cannot determine where public employees live. This statute was declared unconstitutional by the Colorado Supreme Court in 1990, 788 P.2d 764, and should be repealed.

Assignments for debtors: Article 10 of Title 6. Ninety-nine years ago, when this law was passed, assignments in general through a court process may have been the way to disburse assets of an insolvent debtor to creditors. But since the court cannot discharge the debtor (that’s the role of the bankruptcy court) the statute has no real use. Its quaintness is shown in giving priority to wages earned within the past six months of less than $50.

Wrongful death: There are three wrongful death statutes, depending on whether you are killed by a railroad conductor, a fellow servant, or anyone in the world. It makes no sense to have three such statutes since you are just as dead no matter who did it. The statutes are 8-2-202, 13-21-20l, 13-21-202. Repeal two and keep one.

World War Two is over: When World War II ended, legislators were anxious to do something for the returning vets; in 1947 they enacted 29-4-401 to 403 to provide for housing authorities for veterans, with preferences for veterans who served in World War II between Dec. 7, 1941 and Sept. 2, 1945. The youngest would now be 69.

World War One is also over: During World War I, Coloradans worried about food shortages and passed Article 31 of Title 35 which forbade the owner of a crop eaten by humans or animals from allowing a surplus to rot in the field "for the purpose of limiting or diminishing the quantity available for market." In 1994 this article was amended to allow tort actions when false information is given regarding food crops. The 1917 portion could be repealed without harming the 1994 concerns.

And there’s no draft: CRS 23-5-118 provides that one can’t attend a state-supported college without having registered for the draft. There currently is no draft. Registration still exists, however, despite the recommendation of the Pentagon. (President Clinton, with his own history of draft problems, was unwilling to follow the Pentagon recommendation to abolish draft registration.) Collecting and processing the registration compliance forms is a waste of Colorado taxpayer funds.

The grasshopper infestation of 1965 is over: The statute books no longer need 24-32-2111(6), protecting the state from liability regarding emergency grasshopper control programs.

Arapahoe is not Denver: In the 19th century, Denver was part of Arapahoe County. When Denver became a separate county, CRS 30-11-202 (a 1901 statute) allowed references to Arapahoe County to be applicable to Denver County.

The State Engineer: CRS 30-6-111. The state engineer gets a regular salary. This section provides for counties to each pay him $10 per day plus expenses in determining boundary disputes. (An 1887 law amended in 1908.)

No more poorhouse: Those readers who are somewhat elderly might remember when mom or dad, exasperated over some event, said you were "going to drive them into the poorhouse." Well, CRS 30-17-106 still allows commissioners in each county to establish a poorhouse. None appear to be presently in existence. Nor, barring rather drastic and unexpected changes in the welfare reform bills, do county commissioners still need the authority to operate poorhouses.

Payments that have been made: Statutes often contain references to past payments, which statutes remain on the books until someone comes along and removes them. This needs to happen for CRS 24-50-104(6), 24-75-201.1, 211, and 214 and 24-75-302.

Animal advertising: CRS 40-27-108(2) is an excellent example of why you don’t want to put dollar figures in a statute if you can avoid it. This subsection requires the secretary of the state board of stock inspection commissioners to pay $1 per week for two weeks to advertise in a newspaper describing a domestic animal killed or wounded by a train, seeking to find the owner. (A 1911 law.)

Obsolete railroad laws: Articles 20 through 33 of Title 40 deal with railroads. Almost none of the criminal penalty provisions have been brought up to date since enacted 50 to 80 years ago. It would be a simple process to turn most of them into Class 1 to 3 misdemeanors and fines, or petty offenses, and avoid using dollar figures that are hopelessly out of date.

Colorado Constitution

Our state constitution is too long. Part of the reason is a number of obsolete provisions.

In 1992, Coloradans adopted a one section fits all severability clause for constitutional amendments, under Article 18, Section 10. There is no longer a need for Article 18, Section 9(5) (f) or 9a(3), or Article 26, Section 5.

The following provisions are either obsolete or unnecessary:

Article V, Section 4: This section deals with qualifications of members for the state legislature, and has been in the constitution since 1876, which is why the last sentence is now definitely obsolete. It reads: "Provided, that any person who at the time of the adoption of this constitution was a qualified elector under the territorial laws, shall be eligible to the first general assembly."

Article V, Section 25: This section deals with special legislation, such as forbidding the legislature from granting divorces or changing the rules of evidence in the middle of a trial. The section’s purpose still makes sense, but one portion refers to "justices of the peace". We no longer have JPs in Colorado and the reference to them is obsolete.

Article IV, Section 20: This section has also been in the state constitution since its original adoption. It provides: "The superintendent of public instruction shall be ex officio state librarian."

"Ex officio" means "without appointment other than that resulting from the holding of a particular office." So whoever is superintendent is also state librarian. Of course, there is no longer a "superintendent of public education". We have changed that term to "commissioner of education" and the state constitution should reflect that.

If you are curious, and turn to CRS 24-90-104, you will find the commissioner of education is no dummy. He has been given authority to appoint an assistant commissioner, office of library services, to handle any library duties, and that person has to have many years of library experience.

Article XIV, Section 6: This section deals with county commissioners. The last paragraph, except for the last sentence in that paragraph, is obsolete. It extends the term of county commissioners elected in office in 1904 for an extra year, and the same for commissioners whose terms expire in 1906. There are a lot of words, but they don’t mean anything because all these terms in office ended in 1907.

Article XIV, Section 8: This section deals with election of county officers. The last sentence is obsolete and should be repealed. It reads: "The officers herein named elected at the general election in 1954 shall hold their respective offices until the second Tuesday of January, 1959."

Article XIV, Section 15: This section deals with compensation and fees of county officers. The last paragraph provides an exception to the fact that compensation should not be increased or decreased during their term of office. The part to be removed, which is obsolete, reads: "Except for the schedule of increased compensation for county officers enacted by the general assembly to become effective on January l, 1969."

Article XIV, Section 17 (3): This deals with the regional service authorities. The language which is obsolete and should be deleted reads:

"but for the first five years after formation of any service authority, the members of the governing body shall be elected by the registered electors within the boundaries of the authority from among the mayors, councilmen, trustees, and county commissioners holding office at the time of their election in home rule and statutory cities, cities and counties, home rule and statutory towns, and home rule and statutory counties located within or partially within the authority. This restriction shall expire January l, 1980."

Article XXII, Section l: We adopted this provision in November of 1932 after adoption of the 21st amendment to the U.S. Constitution, which repealed the 18th Amendment to the same constitution. The 18th Amendment was "prohibition of the sale of intoxicating liquors".

Our Article XXII simply provides that as of June 30,1933 the laws "heretofore enacted" dealing with intoxicating liquors are void, and goes on to approve the authority of the legislature to enact new laws governing intoxicating liquors.

You could simply delete the first 37 words which deal with events prior to the middle of 1933, if you wanted to keep some reference in the constitution. Certainly those 37 words are now obsolete.

INDEPENDENCE INSTITUTE is a nonprofit, nonpartisan Colorado think tank. Its public policy focuses on economic growth, education reform, local government effectiveness, and criminal justice.

PERMISSION TO REPRINT this paper in whole or in part is hereby granted, provided full credit is given to the Independence Institute.

TOM TANCREDO is President of the Independence Institute.

DAVID B. KOPEL is Research Director at the Independence Institute.

JERRY KOPEL served in the Colorado House of Representatives for 22 years. He is currently a political columnist for the Colorado Statesman, and a recipient of the Colorado Press Association’s award for community service journalism.