Attorney General of Colorado — Opinion
March 26, 1980
RE: S.B. 117 (1980 Sess.)
J.D. MacFARLANE, Attorney General
Honorable Richard D. Lamm Governor of the State of Colorado Executive Chambers 136 State Capitol Building Denver, Colorado 80203
Dear Governor Lamm:
Your request for my opinion was received on February 27, 1980.
QUESTION PRESENTED AND CONCLUSION
Your question is whether S.B. 117 (1980 Sess.) is on the Governor’s Call.
My answer is “yes.”
ANALYSIS
S.B. 117 is entitled, “Concerning the Deinstitutionalization of Juvenile Offenders.” As amended on second reading in the House of Representatives, section 1 of S.B. 117 extends the coverage of C.R.S. 1973, 19-2-103, which generally prohibits the detention of juveniles in adult facilities, to juveniles who are over the age of 16. At present, this statutory provision applies only to juveniles under 16 years of age.
Sections 2 and 3 of the bill would make section 19-2-103
applicable to juveniles charged with, or convicted of, fish and game violations and traffic offenses. Sections 2 and 3 also authorize the sentencing judge in fish and game and traffic cases to commit a juvenile to a locally operated detention center. Under current law, fish and game violations and traffic offenses committed by juveniles are not subject to the Children’s Code except that a county court may transfer a traffic case to the juvenile court if the offender is under 16 years old. See C.R.S. 1973, 19-1-103(9)(a)(I) and (II) and 19-1-103(9)(c). With the exception noted, for purposes of violations of fish and game and traffic laws, juvenile offenders presently are treated as adult offenders.
Turning to the question of whether S.B. 117 is on the Call, it is helpful to refer to my opinion to you dated February 7, 1980 regarding S.B. 20 (1980 Sess.). In that case, a very narrow call item (item 40 of the January 11, 1980 Call) addressed the exemption of first home mortgage loans from the Uniform Consumer Credit Code and it was my opinion that S.B. 20 was not within the item. However, S.B. 20 was clearly within another, very general call item entitled “Concerning housing.” Accordingly, I concluded that S.B. 20 was on the Call, with the caveat that it was a close question because of the lack of legal precedent.
The first call item relevant S.B. 117 is item 132 on the January 11, 1980 call, which states:
Concerning the deinstitutionalization of juvenile offenders.
The term “deinstitutionalization” is neither used nor defined in Colorado statutes. The term is sometimes used to refer to programs financed under the federal Juvenile Delinquency Prevention and Control Act, 42 U.S.C. § 3801 etseq., although the federal act itself makes no reference to “deinstitutionalization.” The act, among other things, provides grants for community-based facilities for juveniles including halfway houses and small, residential facilities. 42 U.S.C. § 3813.
Webster’s Third International Dictionary (1971 ed.) defines “institutionalize” as “to place in or commit to the care of a specialized institution (as for the insane, alcoholics, epileptics, delinquent youth, or the aged).” The prefix “de-” is defined as to “do the opposite of: reverse (a specified action).”
The legal test is whether S.B. 117 has a “rational nexus” to item 132. People v. Larkin, 183 Colo. 363, 530 P.2d 508
(1974). S.B. 117 does not remove juveniles from an institutional setting although it places them in a less restrictive institutional setting by generally prohibiting confinement in adult facilities. Accordingly, I am unable to conclude that S.B. 117 is within item 132. However, there is another call item which clearly includes S.B. 117.
That item is item 6 on the January 2, 1980 call, which reads:
Concerning the confinement and treatment of criminal offenders and persons found not guilty by reason of insanity.
Juveniles are not normally considered to be criminal offenders but, as discussed above, juveniles are treated as adult offenders for game and fish violations and traffic offenses. Further, juveniles over 16 years of age, which is the age group addressed in section 1 of the bill, also are treated as adult offenders under certain circumstances. C.R.S. 1973, 19-1-103(9)(b). Hence, it is my opinion that S.B. 117 is within the broad language of item 6.
SUMMARY
It is my opinion that S.B. 117, as amended on second reading in the House of Representatives, is within the Governor’s Call.
Very truly yours
J.D. MacFARLANE Attorney General
GOVERNOR
LEGISLATIVE BILLS
JUVENILES
S.B. 117 (1980)
C.R.S. 1973, 19-2-103
Colo. Const. art. V, § 7
EXECUTIVE BRANCH
Governor, Office of
LEGISLATIVE BRANCH
General Assembly
S.B. 117 (1980 Session) was within item 6 on the Governor’s January 2, 1980 Call although it was not within item 132 on the January 11, 1980 call.