*1 Colorado, The PEOPLE of the State of
Plaintiff-Appellant, HOLMES,
Thomas Michael
Defendant-Appellee.
No. 97SA200. Colorado,
Supreme Court
En Banc.
May
trative heads of detention facilities. The tri- agreed al court with this contention and granted Holmes’s motion to dismiss. court, judgment affirm the of the trial We em- grounds but on different from those *3 by that that section ployed court. We hold 8—204(2)(Z) its is constitutional on face. 18— however, hold, County also that the Mesa We Facility comply to Detention failed requirements statute. we affirm the trial court’s order of dismissal. I. attorney practicing an in Mesa
Holmes is County. People allege July that on The County Holmes went to the Mesa De- (“MCDF”) Facility Ta- tention to visit David foya, an MCDF inmate who was client of employee, According Holmes. to an MCDF prior Holmes’s briefcase to his she searched entry facility into a secured area of the and cigarettes, ciga- discovered matches and two employee, lighters. advising rette The after Holmes that he was not allowed to take these facility, temporarily items into the confiscat- employee ed the items. The did not MCDF provide Holmes with the reason behind the MCDF’s.prohibition of the items. According People, again 22,1996. Tafoya July on visited the MCDF Daniels, Attorney, Frank J. District Twen- that, People allege meeting The after District, ty-First Judicial Vincent J. Fellet- Holmes, Tafoya possession was of a found ter, Jr., Deputy Attorney, District Grand legal envelope bearing the name of Holmes’s Junction, Plaintiff-Appellant. for According People, an law firm. Kain, Junction, deputy envelope William H. Grand for De- MCDF searched the fendant-Appellee. plastic bag containing cigarettes discovered Tafoya
and a book of matches. stated that Opinion bag he found the on the floor of the visitation Justice MARTINEZ delivered the People room. The claim that the last attor- Court. ney-client prior visit occurred over five hours People appeal order Mesa Tafoya, to Holmes’s visit with County dismissing prose- District Court MCDF officials observed no People cution of Thomas M. Holmes. The in the visitation room matches charged Holmes with the unlawful introduc- Holmes’s visit. County tion of contraband into the Mesa 29, 1996, Facility August People charged Detention violation of section 18- On (1997). 8-204(2)©, introducing 6 C.R.S. Holmes moved Holmes with contraband into the charge, asserting facility July dismiss the that section detention on violation (the Statute”). 18-8-204(2)©, face, on its the Colo- section 18-8-204 “Contraband violates part, rado Constitution because it constitutes an relevant the Contraband Statute impermissible provides person introducing delegation the General As- that “a commits sembly legislative powers degree in the second if he know- adminis- contraband unlawfully given facility” ... at- notice that is ingly introduces or because “the determination under the contra- tempts to introduce contraband into a deten- 18-8-204(l)(a). § band statute is not made on a state-wide facility.” addition tion basis.” listing specific items that are contraband statute, purposes of the the statute de- Thus, the trial court concluded that “the “[a]ny thing contraband as article or fines specificity legislative lack of in the standards poses may pose a threat to the securi- coupled with the lack of administrative stan- ty of the detention as determined safeguards” dards and rendered the Contra- head of the detention facil- administrative delegation band Statute an unconstitutional given ity if reasonable notice is that such legislative authority. ap- now thing article or is contraband.” 18-8- peal pursuant the trial court’s order to sec- 204(2)©. statute, By the terms of the (1997), 16-12-102(1), tion 6 C.R.S. and sec- *4 requirement applies only “reasonable notice” (1997). 13-4-102, Although tion 5 C.R.S. we to those items contraband described disagree analysis, with trial court’s we 18-8-204(2)©, not to the section items judgment. generally affirm its See State v. 18-8-204(2)(a)-(k). listed section Franc, 69, 76, 48, 165 Colo. 437 P.2d 51 (1968) (“[Wjhen the trial court enters a cor- 10, 1997, February Holmes moved to On judgment wrong rect for the reason we -will motion, charge. In his dismiss the it.”); Hilton, People nevertheless affirm v. alia, argued, that inter the Contraband Stat- (“A 883, (Colo.App.1995) 902 P.2d 887 correct impermissibly delegates legislative power ute upon will not be decision disturbed review to the administrative heads of detention facil- though may even the reason for the decision specifically, ities. More Holmes asserted incorrect.”). appear to be gives that the Contraband Statute an admin- authority istrative head “unbridled to declare II. conduct criminal” in violation of the Colorado The Colorado Constitution divides the interpreted by Constitution as this court. powers government depart into three Holmes also contended the administra- legislative, judicial. ments: the executive and tive head of the MCDF did not determine Const, See Colo. art. III. The constitution pose matches persons provides that “no or collection of by required threat as persons charged powers with the exercise of Finally, Contraband Statute. Holmes ar- belonging departments to one of these shall gued that the MCDF not did reason- power properly belonging exercise able notice that and matches are others, except either of the as in this consti contraband under the statute. expressly permitted.” tution directed 31, 1997, May granted On the trial court Const, Ill; People Colo. art. see also v. Holmes’s motion to trial dismiss. The court (Colo.1988). Lowrie, 778, 761 P.2d 780-81 held that the is unconsti- Contraband Statute legislative power vests The constitution tutional on its face because it does Assembly. the state the General safeguards vide sufficient standards and Const, V, “nondelegation Colo. art. 1. The prevent the “unreasonable exercise of discre- doctrine,” separa in the constitutional rooted tionary by power” the administrative heads powers, prohibits tion of Assem General of detention facilities. The trial court ruled bly power delegating legislative that, it allows an administrative head department government per another to declare an item contraband under the Lowrie, at 781. son. See 761 P.2d upon determining only statute that the item risk, However, “may pose” nondelega the reach of the the Contraband “virtually Statute is ... tion is limited the fact standardless since doctrine virtually anything ‘may pose’ “[rjegulation through agencies a risk.” Fur- administrative thermore, system.” significant accepted part legal the trial court is an of our found Brown, 378, 387, 402 uniformity respect is no with v. 157 Colo. “[t]here Swisher (1965). 621, permitted Assembly what from one to anoth- P.2d 626 General er, uniformity improperly delegate legislative regard and no with does not
410
power job principles “when it In describes what accord with the described done, it, above, scope who must do and the of his constitutionality we now examine the Swisher, 388, authority.” Colo. 402 of the Contraband Statute. Lowrie, 626;
P.2d at
see also
tory safeguards standards and are inade tain whether and when he or she determined quate prevent the unfettered exercise poses may pose that an item security a administrator, discretionary power by an risk. court should then determine whether “addi tional administrative significant standards and safe This is a check on the discre- guards accomplish necessary protection tionary power of the administrative head be- arbitrary action.” Id. at 710. If merely cause the statute can not be satisfied statutory safeguards provide standards and post-hoe analy- resort to a rational basis protection, however, that, enough retrospect, court need not sis. It is not proceed to examine administrative present stan administrative head is able to a ra- safeguards place. argument support dards which tional of the view that
4H
poses
risk.
prohibited item
analysis focuses on the actual
proper
“may
that the
The trial court found
employed by the administrative
reasoning
“virtually
pose” language was
standardless”
her
at the time of his or
decision
head
anything ‘may pose’
“virtually
particular rea-
because the
prohibit the item
conclusion,
support
As
for this
risk.”
prohibition is critical
behind the
son
upon
analysis
our
trial court relied
prohibition also
a violation of the
whether
(1977).
Hoehl,
193 Colo.
sufficiently statutory clear standards. Therefore, capable of a statute B. comports with constitu- construction “which validly delegated tional standards for author- primarily upon two The trial court relied Loimie, ity agency,” an 761 to administrative concluding that the Contraband factors language that the P.2d at we conclude adequate standards and safe- Statute lacked the Contraband Statute does not offend First, guards. the trial court found fault constitution. “may pose” language in sec- with the broad 18-8-204(2X0- Second, the trial court tion is the notion Inherent this conclusion by was troubled the fact that whether application interpretation that broader may item is contraband under the statute statutory “may pose a threat” violate the vary facility facility.2 not find determining to We do above. standards described negate particular may pose the stan- a securi- these considerations whether a item threat, safeguards provided ty the Con- the administrative head must use dards concept “may.” In the more restrictive traband Statute. to p. band. Because we understand this concern 1. See discussion 423-424. infra statute, compliance proper relate to with expressed 2. The trial court concern about also constitutionality, the statute’s facial rather than provid- adequacy of the notice of contraband opin- we address this concern in Part IV this MCDF, may given facility that each ed ion. qualifies view of what as contra- hold different 412 Willson, comply (quoting People
order to
with the statute and the
flexibility necessary to effectuate obvious
legislative goals
dealing
complex
with
presents
Holmes
an alternate basis for the
problems.
economic and social
trial
charge against
court’s dismissal of the
3.. The trial court did not determine whether the
4. Because we conclude that the standards and
proper
administrative head of MCDF used the
interpretation
safeguards
found in
Contraband Statute are
"may pose
promul-
a threat” in
prevent
sufficient to
unbridled administrative
gating
prohibition
cigarettes
and matches.
discretion, we do not address the existence or
Indeed, the trial court did not decide whether the
adequacy
any
administrative standards or
actually
cig-
administrative head
determined that
Cottrell,
safeguards. See
matches “would be considered a
of-
e.g.,
defense to criminal
States,
192,
fense.”
199,
Cheek v. United
498 U.S.
604,
(1991);
111
112
S.Ct.
617
L.Ed.2d
Lam
position encompasses
Holmes’s
two
California,
225, 228,
bert v.
355 U.S.
78 S.Ct.
arguments, one broader
than the other.
240,
(1957);
C. intelligence a opportunity reasonable to know prohibited, what is so that he act accord Generally speaking, where the ” ingly.’ Beacom, High Shop Gear & Toke v. imposes liability law criminal for certain con 624, (Colo.1984) 689 P.2d (quoting 630 duct, requires the scienter element “no more Grayned City 104, Rockford, v. 408 U.S. person than that charged duty 108-09, (1972)); 92 S.Ct. 222 L.Ed.2d knows what doing. he is It does not mean Buckallew, see also that, 848 P.2d addition, suppose he must that he is (Colo.1993). Secondly, supply laws must breaking the law.” United States v. Dash (10th explicit ney, Cir.1991), apply standards for those who 937 F.2d them dis rev’d, prevent arbitrary order to post-conviction missal and discrimina 52 F.3d relief (10th Cir.1995). tory Buckallew, *9 general 298 enforcement. This rule is See 848 P.2d 907; Nissen, deeply-rooted 547, based on the at principle that v. 650 P.2d 549 (Colo.1982). ignorance of the law or mistake of law is no 1820, early 6. Livingston explained, As community power Justice the have it in their to become allege ignorance acquainted "[N]o one is allowed to his with the criminal code under which Smith, any (5 Wheat.) they excuse for crimes he commit. Nor is live.” 18 U.S. at 182 this, J., any hardship great body there (Livingston, dissenting). for the of
415 requirement to warn to a detention process The due visitors an item prohibited the the introduction of is a criminal clearly define that a statute pursuant offense simply because the Contraband Statute. is not relaxed conduct Next, in order to avoid constitutional con- to an delegates certain decisions statute “ flicts, situation, we must construe the “reasonable no- agent agency. such a ‘[t]he provision to tice” of the Contraband Statute promulgate to clear and unam responsibility ” constitutionally require notice. sufficient [agency].’ standards is on the biguous Shop, & generally High Gear Toke 689 Corp., v. 60 United States Trident Seafoods (“If susceptible P.2d at 632 a statute is to (9th Cir.1995). Furthermore, F.3d 559 interpretation, more than one it should be regulation agency of where a violation an way construed in a that will render it consti- sanctions, subjects party “a criminal tutional.”). Finally, we must whether decide be to mean what regulation cannot construed by the notice conforms MCDF adequately agency intended but did statutory requirement. head of the express [administrative [and] responsibility to state with agency] has D. certainty is meant ascertainable what promulgated.” discussed, he has Gates & undisputed standards previously As Safety Occupational v. & Health Fox Co. facts this ease establish the contents of the (D.C.Cir. Comm’n, 790 F.2d 156 signs posted Review within the MCDF. The 1986). indicate that and matches were prohibited within certain areas Thus, propriety in assessing the of a possessed If the of MCDF administration law, reviewing criminal court must balance prohibit only power those items described general ignorance rule that law is Statute, in the Contraband would be rea- requirement process with the due no defense assume, simply sonable from the existence explained, of notice. As the Second Circuit prohibition, in attempting to achieve this balance: illegal matches were considered “contraband” law, primary purpose of and the crimi- However, meaning within the of the statute. particular, nal law in is to conform conduct no there is such limitation on the administra- expressed norms in that law. When power; items prohibit tion’s the MCDF provi- the law’s knowledge there is no not qualify that do as “contraband” under the sions, probability no reasonable as- Contraband Statute.7 one cannot obtained, might knowledge no useful every prohibited by sume that item by prosecuting is served the “viola- end is fact of illegal MCDF contraband.8 The better, they know tors.” Since could not not, more, prohibition allow does without hardly expect they can should have we a visitor to whether a determine little to been deterred-There is recom- meaning within item is “contraband” incarcerating obey who would mend those the statute. only they if knew of its existence. the law For an within item be “contraband” Mancuso, United 420 F.2d 559 States 18-8-204(2)®, meaning three of section (2d Cir.1970). things are be a required. item must head must
Accordingly, security, our task is three-fold. We risk the administrative risk, it is determine notice is have determined that such a must first what sufficient course, regulation, lawfully the ad- 7. the introduction of or order issued Of items qualify facility." not so not be crime that do would Id. ministrative head of the detention the Contraband 18-8-204(2), under Statute. (quoting 8 C.R.S. at 1081 n. (1973 Supp.)). & al- Because the statute fact, precludes Lepik 8. our decision in "determine lowed the administrative head to Lepik, conclusion. See P.2d at 1081. In things be contra- such as an ice-cream cone to Assembly impermissibly held that the General section,” we band under that found legislative delegates power where it defines permitted of ad- statute the unbridled exercise person illegal contraband as "which item ministrative in violation of the non- discretion facility prohibited confined in a detention delegation doctrine. Id. rule, obtaining possessing by or a statute *10 example, presented evi- given
reasonable notice must be
the
sue. For
Holmes
hearing
at
dence
below that
least
item has been identified as unlawful “contra-
thirty-one
prohibit cigarettes
counties
only
provides
A notice that
that a
band.”
According
their detention facilities.
particular
prohibited
item is
does not
Holmes,
ciga-
fifteen of these facilities treat
has
as
notice that
item
been identified
as
meaning
rettes
contraband within the
meaning
“contraband” within the
of this sub-
Statute,
the Contraband
while the rest treat
section.
cigarettes
merely a
the introduction of
may
prohibited
Cigarettes and matches
violation of administrative
Without
rules.
reasons,
number of
some which
commenting upon
accuracy
of this evi-
security.
example,
may be unrelated to
For
dence, we note that the Contraband Statute
may
facility
smoking
a
ban
out of a
detention
does allow such different treatment of the
concern for the health of its staff or inmates.9
Thus,
by
same item
different facilities.
be-
Cigarettes
illegal
matches are
contra-
and
criminality
cause the standard of
at each
only
if
band under
Contraband Statute
facility may vary, a
a
visitor,to
detention
the administrative head
the MCDF deter-
prohibits
only
can
posed
reasonably
mined that these items
guess
prohi-
as to whether a violation of the
security
could
a risk to the
of the facili-
reiterate,
bition is criminal conduct. To
ty. Hence,
prohibition
the reason for the
process
law offends due
it “‘either
where
paramount importance.
requires
doing
of an act in
forbids
By merely referring
contents of
vague
ordinary
terms so
men of
intelli-
MCDF,
signs within the
one cannot deter-
necessarily
gence
guess
as to its mean-
”
mine if
and
have been
matches
Nissen,
ing
application.’
as to
and differ
by
determined
the administrative head to be
(quoting Connally
417 words, must privy to of ute.11 other the notice be is not the kind public to information, history purpose or allow a visitor to ascertain as the of sufficient such rule, introducing would whether a certain item violates facility a be avail- detention explained rule-making pro- APA’s the Contraband Statute. As pursuant able above, by the this the notice MCDF significant is cess. This fact visitor know does not meet this standard. may allow a information item con- particular prohibited whether is a Secondly, requires the Contraband Statute meaning of traband the statute. within that, of an item before the introduction is conduct, an considered criminal administra- that, compliance “[w]hile assert poses tor must determine that the item or Act Administrative Procedure State posing a probability has a reasonable of secu- way giving could be as one of reason- seen Therefore, visitor’s, a rity threat. a or re- notice, many ways in able there are other court’s, viewing reasonable belief that an given.” may which could be This such notice may security item be a risk is irrelevant requirement be true. The statute’s notice facility unless the administrative head of the unnecessary for adminis- render previously has that the item determined facility copy trative the APA’s head of be a risk. section Under 18-8- provide in rule-making procedures order to 204(2)©, illegal only an item is contraband notice. The Contraband Statute reasonable head has made this administrative facility provide requires the “reasonable after determination. reasonable notice of Without thing article or con- notice ... that such is determination, this a visitor cannot know 18-8-204(2)© (emphasis sup- § traband.” whether an item is contraband within the “contraband,” plied). most The term meaning of the statute. general any “goods mer- usage, can mean importation, exportation, or chandise whose Consequently, the “reasonable no possession is forbidden.” Webster’s Ninth provision tice” the statute cannot be satis (1989). Dictionary Collegiate New “Con- prohib simply notice that an item is fied traband,” however, has a much more limited ited. One could not determine this meaning in the context of the Contraband limited notice his or her acts whether are is one the items Statute. “Contraband” conduct, explicit criminal even with refer 18-8-204(2)(a)-(k). listed “Contra- section ence to Contraband Statute.12 There as an item that band” is also defined fore, Statute, in order the Contraband facility administrative head of the has deter- comply process, requires with a more due probable mined a risk or risk to the to be minimum, complete notice. At a 18-8-204(2)©. § inform a must be sufficient to visitor with Hence, respect knowledge of the Con with to “contraband” de- actual constructive (2)(Z), fined in traband Statute that the introduction subsection provide an item item criminal conduct. With either notice that has been is respect have a listed subsections determined to reasonable items risk, (2)(a)-(k), provides probability posing security the statute itself ade or clear- ly quate manner that notice that the introduction indicate some other respect is to an item is as defined the stat- items unlawful. With item “contraband” course, Hall, generally Of 742 F.2d 11. need not United States type respect (9th Cir.1984) regulation (holding of notice items listed as (2)(a)-(k). in subsections The Con- "contraband” resulting prosecution must either in criminal be provides traband Statute itself notice that published Register or it must the Federal specific introduction of those items a criminal knowledge proven that defendants had actual offense. terms). regulation’s jurisdictions Several supplement process requirements with due sufficient, type If were of notice deemed defense, statutory patterned after the Model Pe- violating one be convicted of a law the could Code, violating an nal accused of "un- those precise which he or she could know. terms of Robinson, available law.” 2 Paul H. Crimi- Such a conviction would be inconsistent with (1984); § nal Law 182 at 381-85 Model Defenses ''ordinary play of fair and the notions settled 2.04(3)(a). Penal Code 907; Buckallew, 848 P.2d rules of law.” see *12 (2)(Z), by agree
described subsection majority reasonable with the that section 18-8- (1997) (the may accomplished by various Second-Degree C.R.S. statute), example, methods. For the administrative Contraband an impermissible is not promulgate publicly delegation head could available legislature’s authority the and identifying written rules which items are therefore is not unconstitutional on its face. they maj. op. in the because have See at 412. security been determined to be a risk or join, however, I do not majority’s hold- meaning “contraband” within the of the stat- ing part in opinion. majority of its IV The may ute. Reasonable notice also be accom- provided holds that by the notice the Mesa notices, plished through posted such as (MCDF) County Facility Detention was not signs. signs may prohibit- that a The state sufficient Second-Degree under the Contra- (a) by ed item either has been determined view, band statute. my See id. at 418. (b) risk, to be has departs this conclusion plain lan- to be been determined “contraband” within guage addition, major- of the statute. meaning of the Contraband Statute. Al- ity creates a notice standard that is inconsis- ternatively, state that intro- and, process jurisprudence tent with due aas the item is unlawful or duction sub- result, injects uncertainty into our ease ject prosecution. visitor criminal law. above, explained As the notice described by undisputed facts of this ease indicates I. only matches, cigarettes along and discussing Before majority’s conclusion items, many other are within the sufficient, that the notice here was not it is facility. These are specifically items necessary majority’s to address the treat- as identified “contraband” under subsections arguments ment of certain facts and in this (2)(a)-(k) Therefore, of the statute. majority case. The determines that Holmes purported these items are to be “contraband” knowledge case, lacked actual in this refers (2)(l), under subsection the notice argument to an necessary that is not to its by the MCDF does not conform to the notice issue, resolution of the notice and does not
requirements of the Contraband Statute. discuss the cigarettes risks that and Thus, we affirm the trial court’s dismissal of MCDF, matches at the by as indicated against the case Holmes. testimony past and current admin- istrative heads of I the MCDF. address each
V. points of these in turn. summarize, To we hold that the Contra- band Statute is constitutional on its face. A. hold, however,
We also the notice majority indicates that Holmes did not vided comply MCDF did not with the have actual notice of the reason behind the requirements of the Contraband Statute. prohibition MCDF’s and Consequently, although disagree we maj. op. matches. See at 408-409. The ma- reasoning court, upon relied the trial jority explains 11,1996, July that on the date judgment. affirm its on which the allege that Holmes first brought and matches MULLARKEY, J., part concurs in and MCDF, employee an MCDF found these VOLLACK, C.J., part; dissents in items Holmes’s temporarily briefcase and SCOTT, J., join in the concurrence and confiscated them. majority See id. The dissent. states, then employee “The MCDF did not ' concurring part Justice MULLARKEY provide Holmes with the reason behind the dissenting part. prohibition MCDF’s of the items.” Id. at join majority’s While I holding part opinion,
III of majori- its I dissent from the apparent This conclusion is not from the ty’s holding part opinion. IV of its I record. At hearing on Holmes’s motion majority’s discussion of Holmes’s Id. The dismiss, employee testified the MCDF simply developed that the MCDF assertion 1996 incident. July about cigarette for the post-hoe rationalizations employee stated: MCDF is, majority recog- prohibition matches him he I asked what pulled them out and I However, nizes, analysis. unrelated to smoke, said, these, I and he doing with was majority refers to this “factual because the said, Well, you’re not I a bad habit.1 it’s majority’s opin- reading dispute” and jail I’ll hold in the so to take these allowed *13 alleged for this ion does not context just time so you, next up here for but them explain the nature dispute, important it is to know, these allowed to take you you’re not on the rec- parties’ arguments of the based know, said, I thank jail. He didn’t in the this court. ord before you. hearing, to the cur- At the motion dismiss employee ask the MCDF People The did not past heads of the rent and administrative she directly whether or not security threats testified as to the MCDF prohibition and the reason for the posed to the cigarettes matches and that cross-examine counsel did not Holmes’s Wooley, facility. David the current adminis- Moreover, the trial court employee. MCDF MCDF, past testified that trative head of the to finding as not make factual did attempted “are” electrical inmates have to (as opposed to knowledge actual Holmes’s light cigarette or in the to wires knowledge via the MCDF’s constructive item, arcing other smokeable and such some the MCDF’s the “reason behind signs) of facility. power outages cause can Maj. op. at 408. prohibition of these items.” head Berry, the first administrative Dennis or know whether Accordingly, we do not MCDF, cigarette that a lit of the testified knowledge sufficient Holmes had actual not in remote areas of can be used to start fires underlying prosecution to warrant alarms, which in facility and to set off fire matter which was charge. This is a factual safety security concerns turn creates and poten- If it is by the trial Court. not decided out of the when inmates are moved majority opinion im- tially dispositive, as the Berry Wooley and testified Additionally, both remanded to deter- plies, this ease should be cigarettes as a com- that inmates treat question. mine that Berry, to modity, according to can lead which assaults, bartering, and sexual as- gambling, B. cigarettes also use saults. Inmates systems hide short-circuit electrical reviewing argument Holmes’s that the items, razor blade other such as conceal inadequate, in this case was MCDF’s notice matches, Berry testified that pieces. As for majority reference to Holmes’s makes simple may use matches to make a inmates head of the assertion that the administrative heads, “cut[ing] explosive off their device cigarettes that MCDF failed to determine usually wrap[ing] together, puffing] them may pose a threat matches ... [and] kind of a foil them with some charge against Holmes. See id. prior to the build[ing] to them.” a fuse majority states: at 413. The testimony that the People presented court with The parties presented the trial issue, the MCDF made the heads of and the administrative conflicting evidence on this cigarettes and matches this conflict. determination trial court did not resolve long before the date posed threat analysis concerns the our below Because Berry testi- determination, charge against Holmes. re- notice of the contraband facility in made, opening prior our ultimate fied gardless of when it was surveyed members he and a team of staff upon the resolu- depend does not decision country regarding facilities across the express other dispute, this factual tion of by cigarettes deten- problems created opinion dispute. on this no a second cigarettes time, into the MCDF during investigation and matches People allege an 1. The incident, investigating officer Holmes told the following July the date on cigarettes. brought he did smoke assert that Holmes which the Berry hearing dismiss and who is now Holmes’s tion also testified that the facilities. hearing, At appeal. counsel on Kain signs expressly prohibiting shortly Wooley about place after the facili- testified that he asked matches were ty approximately years regarding MCDF’s tobacco opened in determination four said, “What, Wooley charge at issue here. and matches and that do before the date of Holmes, you mean, up According also indicates that MCDF front?” record prosecut- Wooley’s response demonstrates officer dismissed and detention was prior a determination into the MCDF never made introducing ed Additionally, charge against incident. Holmes. to the Holmes opposition to Holmes’s mo- their brief Viewing together assertions above dismiss, People point tion to to a letter alleged dispute shows that the factual has no sheriff, Wooley deputy spe- to a which First, substance. the standard contained in cifically Wooley’s view that: included is different the inmate handbook from the [Ujnder are no circumstances inmates ever statutory The inmate standard. handbook *14 cigarettes while confined allowed to have contraband, possession with of deals inmate a County Facility. Detention the Mesa misdemeanor, 18-8-204.2(2), § class see 1 6 to,the assaults, Fires, facility, damage dis- (1997), C.R.S. to the opposed as introduction gaining turbances inmates control over and facility, felony, a a contraband into class may pose a inmates all threat the secu- (1997). 18-8-204(3), Second, see 6 C.R.S. rity facility. Many detention Wooley that he didn’t testified understand County in the Mesa De- those incarcerated question anything that Kain’s had to do with users; Facility are tobacco tention there- Holmes’s case that he believed that Kain and fore, any inmate with access to tobacco asking was him or not whether the MCDF gains degree a of control over tobacco provided policies procedures lawyers and using inmates have no access. who Such Third, above, as specifically. summarized by access one inmate and not another is the record contains the cumulative testimony likely also to cause disturbances and or Wooley Berry from they both and which housing assaults within the area. timing discussed the substance their expressed security The letter also concerns regarding ciga- determinations the risks of lighters. Wooley about matches, matches and ex- Wooley’s rettes and letter describ- plained: ing posed items, security by risks these prior prosecution and reference to a involv-
Obviously cigarette a to smoke it must MCDF, ing alleged similar those against actions as be lit. In light- matches and Holmes. While it is true that the trial court they ers are contraband because can be proper resolving is the forum for factual used to set fires. disputes, overwhelmingly the evidence dem- pre-dates July This letter 1996 inci- long onstrates that MCDF determined dent several months. charges to the in this case that matches testimony Notwithstanding this and evi- cigarettes posed had a reasonable dence, argues Holmes the administrative probability posing threat to the MCDF’s head of the did not make a MCDF determi- security. posed nation that and matches may posed security have a threat to the at C. assertion, making the MCDF. points majority generally to the MCDF’s inmate hand- While the notes that
book, possessing “[cjigarettes may which that an states inmate and matches reasons, tobacco commits a II some and matches Class number of which violation, disciplinary may security,” maj. op. which is a violation that be unrelated to added), necessarily present (emphasis majority not “do[es] constitute does not security and immediate threat discuss the risks that and matches MCDF, Facility.” highlights Wooley Detention Holmes also as indicated Kain, testimony Berry. support non-security pur- who was To William poses expert prohibition, majority Holmes’s witness at the motion to of such a cites added). Although the (emphasis Id. at 416 in an unrelated court’s order trial a different evaluating majority states where involving a different case differences, inter-county facili- evidence about that the different concluded trial court majority appears to view the evidence as about the on concerns ty’s was based ban that the notice here support id. at 416 n. 9 for its conclusion of tobacco. See risks health 95M162). Moreover, Davis, adequate. it is difficult to No. was not (citing People v. Harold view, majority’s conclusion that focus on the evidence reconcile my we should Assembly may delegate authority to con- about the serious General presented develop rules re- penal heads local institutions that the MCDF administrative cerns items should be products garding and matches what regarding tobacco had conclusion that the fact that unrelated case about its simultaneous than focus on an rather vary pose or nothing may other than as to what items this court knows facilities which alters the transcript reasonably pose from a threat presented has what Holmes plain reading of ruling. required statutory notice. A court’s oral another trial Second-Degree statute con- Contraband majority properly point, the On a related heightened requirement. tains no such Assembly acknowledges that “the General prescribe each detention allow II. needs of the to the individual rules tailored later ex- facility,” maj. op. at but then ma- problematic portion of the The more vary the fact that facilities plains that analysis concluding that jority’s opinion is its required statu- prohibited items alters the *15 inadequate. It is notice in this case was 416-417. In its non- tory notice. id. at majority’s opinion which I part of the discussion, majority states: delegation now address. Therefore, provided that each detention Second-Degree part of the The relevant facility complies with the standards found contraband as statute defines Contraband [Second-Degree] Stat- in the Contraband follows: ute, of requirement particularly the 18-8-204(2)(1), the Assem- General section thing poses Any article or of bly’s prohibit the introduction policy security of the deten- pose a threat to the is into detention facilities certain items by the adminis- tion as determined implemented. properly facility if of the detention trative head given that such article notice is reasonable added). discussing (emphasis Id. at 412 thing is contraband. statutory notice of the MCDF’s adequacy ease, however, majority explains: in this (1997). 18-8-204(2)©, Having con- C.R.S. “may pose a threat language facilities cluded that fact that different detention [T]he security” be construed to mean cigarettes treat throughout the state a threat probability” posing “a reasonable differently jfurther complicates the issue. maj. op. at facility’s security, example, presented evidence For be: for this court should thirty- questions relevant hearing that at least at the below (2) (1) is rea- contraband? and what in their what is prohibit cigarettes one counties Holmes, is con- that an item or article sonable notice According to detention facilities. questions these The answers to cigarettes as traband? facilities treat fifteen these notice here was the MCDF’s meaning of the indicate [Sec- within the contraband Statute, while sufficient. ond-Degree] Contraband treat the introduction
the rest merely of administrative a violation A. upon ac- commenting rules. Without in section evidence, “contraband” as used The term curacy we note that the 18-8-204(2)© unambiguous. Contraband is does [Second-Degree] Contraband Statute prohibited or simply that an item is means treatment of the same allow such different Interna- Third New illegal. See Webster’s by different facilities. item (3d ed.1986).2 Thus, Dictionary tional eluding gum, clippers, pens, nail files or prohibited squarely paper clips, out, books, item is declared falls spiral white note tacks, within the definition of keys any contraband. thumb medication. added.) (Capitalization original, emphasis dispute There is no in this ease that the sign, The clearly prohibited third entitled MCDF “VISITATION RULES,” Upon MCDF, does not mention entering matches. tobacco or visitors matches, although sign exposed are indicates that vis- large signs to three located next itors personal are not allowed to take to each items sign other. The first states in rele- visiting into the area. part: vant CENTER, INFORMATION IMPOR- case, purposes For the of this the first and TANT INFORMATION —PLEASE signs clearly second indicate that tobacco and READ, GENERAL INFORMATION prohibited facility. matches are in the sign “LEGAL expressly VISITS” 1. NO indicates SMOKING IS ALLOWED IN attorney that an bringing THE PUBLIC AREA OF THIS BUILD- tobacco or matches facility. into the ING. “GENERAL sign INFORMATION” indi- Facility 2. The Detention is a tobacco products cates that tobacco and flame facility. products free No tobacco or flame ducing devices are not allowed within the producing devices kind are allowed perimeter secured I conclude perimeter. inside the secured signs plainly and more than ade- added.) (Capitalization in original, emphasis quately visitor, Holmes, inform a such as A sign second part: states relevant one cannot bring cigarettes and matches into PROFESSIONAL CONTACT LEGAL/ the MCDF. VISITS Legal professional contact visits in- B. attorneys, clude visits from social services workers, religious Recognizing that signs clearly or mental the MCDF’s health coun- cigarettes, selors or matches and bonding company representa- the next *16 tives, question becomes, logically place that take “Did within the the MCDF’s secure signs perimeter the reasonable required detention All notice professional statute?” I would signs visitors must adhere hold that the to the provided following guidelines reasonable notice. addition to the general procedures rules and the facili- Although majority does not hold that a ty. facility’s prohibited notice must that indicate se,
items are per contraband majority 5. Visitors give are not explains allowed to agrees Holmes, that it with who anything inmate without notification that [Second-Degree] “contends Contra- and authorization of the detention staff. band Statute demands notice that introduc- include, Some of the items not ing specific allowed but items into the is criminal are not products, limited to: tobacco magic Maj. added).3 op. (emphasis conduct.” at 414 markers, matches, lighters, food in- majority items supports this conclusion em- 2. Webster's Dictionary Third New signs International that the indicated ciga- that and matches defines the noun contraband as follows: rettes were contraband. The trial court's order illegal 1: smuggling 2: states: traffic: goods importation, or merchandise the ex- significant though It is also signs that there are portation, possession or sometimes lobby as one enters the area of the Detention forbidden; smuggled goods. which is also: Facility cigarettes prohib- that and matches are Dictionary Webster’s Third New International contraband, ited and are there is no notice that (3d ed.1986) omitted). (examples their introduction would be considered to be a felony majority 3. The offense. indicates that both Holmes and view, added.) "expressed (Emphasis the trial my court a similar concern” that In the trial court the MCDF's notice concluding did not indicate that signs introduc- was correct in that the indicate ing cigarettes felony. and Maj. matches was a that and matches are found, op. however, at 413. The trial court also are contraband. necessary promulgate rules for By Director to inquiry. the end a three-fold barking on beverage sales. id. regulating alcoholic majority establishes a analysis, the explained: at 783. We then un- not mandated requirement that is notice process. the statute or due der either addition, Assembly pro- has In the General public express with
vided
violating any
regulation
rule or
any person
adopted pursuant
authorized and
guilty
is
majority
Liquor
[must]
“first
Code
of misde-
indicates
Colorado
punished by
to warn
a five
notice is sufficient
meanor and
what
determine
n
year
that the intro-
fine
a one
thousand dollar
visitors to a detention
and/or
county jail.
is a criminal
sentence to the
of an item
duction
offense
[Second-Degree] Contra-
pursuant
notice,
analyzing
sufficiency of the
Id. In
Maj. op.
(emphasis
at 415
band Statute.”
impose
requirement
did
added).
properly framed
majority
If
has
regulations at issue must state that the viola-
that Holmes
there is no doubt
question,
regulations constituted criminal
tion of the
signs in
the MCDF’s
prevail
(reviewing
id. at 779-80
conduct. See
violating the
not indicate that
themselves do
regulations, none of which referred
relevant
posted prohibitions constitutes
MCDF’s
sanctions). Rather, we consid-
to criminal
view, however,
my
offense.
In
criminal
regulations in
the statute and
tandem.
ered
majority
improper.
question posed by the
“[g]iven
concluded that
the varied
We
ease law
the statute nor relevant
Neither
problems
complex nature of the
associated
notice itself
that the administrative
mandates
consumption
alcoholic
sale and
of an administra-
must indicate that violation
rulemak-
beverages, we are satisfied
pursuant
to a statute
promulgated
tive rule
12-47-105
ing standards set forth
section
penalties.
subjects
to criminal
the violator
permissible
areas of
adequately delineate
Thus,
that the
did not indicate
the fact
to the Director and
regulation delegated
the introduction
prospective
adequate
violator with
no-
vide a
a criminal offense is not a flaw.
matches is
penalty.” Id. at 784.
under
tice of the
Lowrie,
necessary that air
it is not
adminis-
sufficiency of the notice
considering
specifically indicate that
regulation
trative
case,
rely
I
on two of our
provided
regulation subjects the violator
violating the
prior opinions that considered administrative
gives
penalties. The statute itself
to criminal
promulgated pursuant to a statu
regulations
such notice.
penal
tory
which
criminal
scheme
Enterprise
Depart
Free
regulations.
In Peo
Citizens
for violation of the
ties
*17
(Colo.1982),
(Colo.
Revenue,
Lowrie,
penalties violating lie for portion could tory However, enforcement.” Id. I do not regulation that is found invalid. agree that princi- the MCDF violated these ples provided as a result of the notice it Applying principles the relevant from Low- visitors. Enterprise rie and Citizens Free estab- for only relevant majori- case cited First, following. lishes the well be ty us, i.e., which bears on the issue before prohibition that the MCDF’s of certain items what notice must be in an adminis- is not proba- consistent with the “reasonable regulation adopted pursuant trative to a stat- However, bility” standard. those items are ute which regula- makes the violation of the prohibitions not before us. if Even crime, support tion a does not majority’s against us, the other items were un- before Hall, holding. See United States v. 742 F.2d Enterprise der Citizens Free we could for (9th Cir.1984). Hall, 1154-55 uphold still and matches ban Ninth Circuit affirmed the defendants’ con- rejecting while the MCDF’s treatment of the violating victions for a federal statute which Second, other items as contraband. under prohibited going upon military Lowrie, reservation we must examine the Second-De- any purpose prohibited by law or lawful gree Contraband statute and the MCDF’s regulation. See id. at 1154-55. The air signs together. The Second-Degree Contra- force regulation base that case enacted band statute tells the introducing reader that which entry onto the base “with- (i.e., facility prohibits item which the con- traband) out the consent of the Installation Command- is criminal Reading conduct. er.” Id. at 1155. The Hall court stated that signs MCDF’s informs a visitor such as “it is not necessary regulation pro- that the Holmes that and matches are hibiting entry published the Federal hibited. signs, statute and taken Register long appellants so had actual and together, adequately inform a visitor about timely notice of its affirming terms.” Id. In consequences the criminal that follow from convictions, explained the Hall court introducing cigarettes and matches into the the defendants had sufficient notice By accepting MCDF. argument Holmes’s security officers informed the defendants that the administrative notice must indicate entry was without the con- that violation of the rules contained in the commander, sent of the there subjects were person to criminal sanc- tions, message, security carried the same personnel majority prece- establishes a bad out, stay warned the defendants to and the may jeopardize dent which regulations other *18 deliberately defendants acted in entering such Liquor as the regulations Code at issue base. See id. in Lowrie and Citizens Free Enterprise.
The Hall court’s reasoning sup- does not port majority’s argument that the notice 2. case, here was In insufficient. the Peo- majority The states that ple occasion, its second task is allege that on an earlier Holmes to “construe provision the ‘reasonable notice’ was security guard told a that he could in the [Second-Degree] bring cigarettes Contraband statute not and matches into the require constitutionally sufficient no- According MCDF. People, Holmes Maj. op. tice.” at majority’s 415. and, con- entered the a second time in clusion that the notice inadequate spite here was previous warning, is deliberately
425
regulation
Flanagan
cigarettes and matches.
the MCDF’s
here: The
gave an inmate
Moreover,
clearly
explained:
indicat-
court
signs
the MCDF’s
bring these items
a visitor could not
ed that
vague
regulation
A
is
on its face when it
the Hall
Absent from
into the
requires
doing
forbids or
of an
“either
any
that the
requirement
is
court’s discussion
vague
in terms so
that men of common
act
behind the
must indicate
“reasons”
notice
intelligence
necessarily guess
at its
gave
that the
the base
regulation or
notice
as
meaning
application.”
and differ
to its
to-
them that vio-
defendants had
inform
comport
“rough
The rule should
with a
regulation
a crime. Under
lating the
was
...
provide
of fairness
fair warn-
idea
Hall,
adequate
had
notice of the
ing
pro-
that certain kinds of
are
conduct
prohibition.
hibited.”
added)
at
Flanagan,
(emphasis
890 F.2d
1569
3.
(omission
original) (quoting Connolly
v.
Co.,
majority
391,
task is to
385,
.The
states that its
269
third
46
General Constr.
U.S.
(1926)
provided
126,
whether
notice
“decide
I am authorized to that Chief Justice join
VOLLACK and Justice SCOTT
concurrence and dissent. Colorado,
PEOPLE of the State of
Petitioner,
v. SWAIN, Respondent.
Robert
No. 97SC16. Colorado,
Supreme Court of
En Banc.
May Law,
Sarah F. Attorney, District Sixth Ju- District, Schmidt, dicial Deputy Paul J. Dis- Attorney, Durango, trict for Petitioner. Unruh, Telluride, D. Richard M. Colin Bresee, Denver, Respondent. for Opinion Justice MARTINEZ delivered the of the Court. granted
We certiorari to review the La County Plata District Court’s order (Colo.Dist.Ct. Swain, No. 96CR152 Dec. 1996).1 The district court reversed Robert Swain’s convictions for driving ability while (DWAI) impaired driving without a driv- statute, 1. The driving issue for certiorari was stated as follows: Colorado's under the influence 42-4-1301(1), (1996 person physical Supp.). section Whether a in actual 17 C.R.S. control of "driving” purposes a motor vehicle is