Jerry Kopel

Sept. 24

Gov. Bill Owens and Atty. Gen. Ken Salazar want to raise the liability of parents when children damage or destroy property or physically injure someone. That was one of the recommendations made in their report following a June summit on school violence and school safety.

The statute is CRS 13-21-107 and there is some merit to raising the amount involved from the present $3,500. That figure was passed by the legislature in 1983 in a bill sponsored by Rep. Kathy Arnold, R-Littleton, with me as original co-sponsor. In 17 years, inflation alone suggests an increase, although perhaps not as high as the $25,000 figure urged by Owens and Salazar.

In 1959, Sen. Charles Bennett, D-Denver, introduced the original law, with damages limited to $300. All the other chief sponsors to follow were Republican. In 1969, the amount became $1,000, and in 1977 it climbed to $1,500, and to $2,500 in 1979.

The 1959 law was a property rights law, holding parents strictly liable for malicious and willful destruction of property by children under 18, who were living with their parents. That was changed in the Arnold bill to include damage (as well as destruction) of property.

In the 1977 version, reasonable attorney fees were added to the amount to be recovered, and in a separate bill in 1983, liability was extended to claims for bodily injury. There would be no need to prove a willful or malicious bodily injury, the word used to describe the act was "knowingly".

Opponents of the law point out it may have no relationship to attempts by parents to control a child; they may do everything that a parent is supposed to do to discipline a child, or teach the child right from wrong, but that doesn't count. There are NO affirmative defenses. If it's a child under 18, living with parents, knowingly causing bodily injury to another, or willful or malicious damage or destruction of property....KABOOM....strict liability for parents.

A Colorado Appellate Court decision in 1995 (which was not appealed) made it clear that once the parents pay $3,500, their liability doesn't cease. It's $3,500 for each property owner, or each person bodily injured. If you have a large group of persons injured, or the children go on a "spree" vandalizing cars parked on city streets, the damages can mount up, especially when court costs and reasonable attorney fees are added.

The other case cited in footnotes to the statute is a 1976 Colorado Supreme Court decision. A young man, who was not licensed to ride a motorcycle, who was inexperienced, and who had been forbidden by his mother from riding, nevertheless took the bike for a ride and smashed into plaintiff's car.

The lower court judge held the young man's actions were willful and entered judgment against the mother for $1,000. Our Supreme Court reversed the decision, saying that taking the bike was willful, but hitting the car was negligence.

The lower court judge whose decision was reversed? It was then- Superior Court Judge Charles Bennett who, as Senator Bennett in 1959, wrote and introduced the original law.

* * *

Your boss asks you to do research regarding a Colorado statute passed five years ago, so that your company can determine whether to proceed on a project. The statute is available to you as a public record, and so are the House and Senate Journals showing votes and amendments. Hearings in committees and debates on the House and Senate floor are also available on tape, either free in the capitol basement's Sunshine Room, or with a charge if available only at the State Archives.

You then go to the Legal Services Office and ask to see the file on the bill. That file includes steps leading up to the version that was introduced in the legislature. Before 1996, you could see that file after final action on the measure, and certainly after the session ended. But after 1996, you could not get all of the

material. And as I read the statutes, closing of materials in files that were previously available applies to past records as well as future records.

This result came about from two laws, SB 212 in 1996 and SB 237 in 1997, both sponsored by Sen. Jeff Wells (R), and Rep. Jeanne Adkins (R). Under the bills, "work product" provided by the legislative drafting office to a legislator such as "advisory or deliberative materials" which "express an opinion" and are to assist the legislator in reaching a decision, are secret.

Anyone trying to figure out what is and what isn't secret has to lay CRS 2-3-505 and 24-72-202 (6.5) side by side. If you read CRS 24-72-202 (6.5) (c) and (d), there appears to be a lot of material, especially items that come from public sources, that could be still be seen by the public. And you find language consistent with (6.5) (c) and (d) in CRS 2-3-505 (c).

But there are two LOOPHOLES. The first, CRS 2-3-505 (2) (e) states: "A member may request that the final version of a document that would otherwise become a public record in accordance with paragraph (c) of this subsection (2) remain work product."

Is that a request or an order? Is the custodian (director of legal services) in any position to say "no"?

The second loophole, CRS 24-72-202 (6.6) (d) states: "This paragraph shall not apply to documents prepared or assembled for members of the general assembly..." under the subsection termed "work product." So the statute "giveth" and the statute "taketh" away.

The end result? Any "work product" remains sealed unless released by the legislator. Anything not "work product" remains sealed upon request of the sponsor of the bill. Your only recourse is to go to Denver District Court and attempt to force inspection.

How long does a matter remain "work product" and thus automatically sealed? There is no statute of limitations in the two laws. If you plan to get the information anyway, be aware of CRS 24-77-206 which provides upon conviction for violating any portion of Part 2, a term of not more than 90 days in the county jail.

There has to be some standard by which the "custodian" can decide whether or not to grant the "request" and there has to be a time limitation on how long a "work product" can be sealed.

Perhaps some legislator in 2000 will introduce a bill to amend these statutes. (Of course that "work product" will also remain sealed.)

Jerry Kopel writes a column for the Statesman based on 22 years past experience as a state legislator.

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