Jerry Kopel


The Denver Post's Fred Brown gave me too much credit earlier this year in a February column. Fred called it "amazing research" that I had counted the number of bills that Colorado's legislature had enacted into law from 1877 through 1996. It wasn't that difficult. Anyone willing to spend several hours and who knows where to look can do it.

The major source is found on page 53 of the Colorado Year Book for 1962-64, prepared by the State Planning Division. This one page gives you all the statistical information about legislative actions from 1915 through 1964.

Colorado's Year Book began back in 1918 with 200 pages. The 1962-64 publication totaled 1,000 pages of valuable information. Some idiot in state government (maybe someone in the legislature) later on decided to cease publication of this major information source to save a few dollars. Only a few individuals and libraries still own the published copies.

How do you get the numbers after 1964 and before 1915? Turn to the last volume of each year's session laws. In the upper corners, find "Ch." for chapter. Look at the last number used. In 1995, it was Ch.284. So in 1995, there were 284 bills enacted into law.

An earlier Post column by Fred Brown had theorized that Colorado had enacted 24,000 laws. I responded the number had not yet reached 20,000. Fred's reply to that suggestion was Colorado should "stop passing laws when the legislature hits 20,000". If he assumes there are nearly 20,000 laws on the Colorado statute books, that is simply wrong. My guess, and it is a guess, is there are no more than 3,000 laws presently in effect.

First, the appropriation and supplemental appropriation bills are not in the statute books. In 1996, there were 20 laws in that category. Second, almost (but not quite) all laws passed by the Colorado legislature in the first sixty years of statehood are gone, replaced by new ones.

Look at Colorado's criminal statutes found in Title 18, Article l through 22. You won't find any statute earlier than 1971. That's because in 1971, the legislature enacted SB 262 by Sen. John Birmingham (R) and Rep. Ralph Cole (R), a 198-page Criminal Code which replaced all criminal statutes passed from 1877 through 1970.

Too many laws? Beginning in August of 1977, Colorado's statutes will be published in a 13-volume softbound cover set with annotations, by Bradford Publishing Co. Presently there are 30 volumes in hardback cover.

The legislature could, and should, continue to wipe away obsolete and ineffective statutes. But unless the legislature learns some self-discipline about the number of new or replacement laws needed each year, I predict the 13-volume set of Colorado statutes for 1997 will be 18 volumes by the year 2007.

* * *

Adultery has been in the news quite recently as it relates to the U.S. military, but it was also a controversial subject in Colorado back in 1971 when the legislature passed SB 262, the new criminal code mentioned earlier in this column.

One of the first laws ever passed while Colorado was still a territory back in 1861 and basically unchanged until 1971 states:

"Any man or woman who shall live together in an open state of adultery or fornication, or adultery and fornication, every such man and woman shall be indicted, and on conviction shall be fined in any sum not exceeding two hundred dollars each or imprisoned in the county jail not exceeding six months. This offense shall be sufficiently proved by circumstances which raise the presumption of cohabitation and unlawful intimacy."

The penalties increased for each subsequent offense but there was an out. "It shall be in the power of the parties offending to prevent or suspend the prosecution by their intermarriage, if such marriage can be legally solemnized, upon the payment of the costs of prosecution."

People were prosecuted under the statute. One defendant who went to the Colorado Supreme Court in 1925 tried to claim the evidence showed only occasional adulterous meetings. The court held "There is no requirement that such meetings should extend over a prescribed period of time."

The 1971 change in the statute was the brainchild of then-District Attorney Dale Tooley who drafted the following, which is the present statute: "Any sexual intercourse by a married person other than with that person's spouse is adultery, which is prohibited."

The Tooley language was quite subtle. It eliminated fornication as an offense and it did not mention a penalty for adultery and it did not classify the act as a felony, misdemeanor, or petty offense. CRS 18-1-108 and 109 provides for penalties where not specified in the criminal statute, but only if that statute refers to the activity as a felony, misdemeanor, or petty offense.

During debate in House Judiciary Committee on SB 262, I made the egregious error of asking the witness, former Colorado Supreme Court Chief Justice O. Otto Moore, who was then serving as an assistant to DA Tooley, the following:

Kopel: "Justice Moore, can you tell our committee the difference between adultery and fornication?"

Justice Moore: (After a short pause.) "Well, I have tried both, and I was unable to tell any difference."

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

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