People v. Elliott, No. 26085

Docket NºNo. 26085
Citation525 P.2d 457, 186 Colo. 65
Case DateAugust 12, 1974
CourtSupreme Court of Colorado

Page 457

525 P.2d 457
186 Colo. 65
The PEOPLE of the State of Colorado, Plaintiff-Appellant,
v.
Larry Lee ELLIOTT, Defendant-Appellee.
No. 26085.
Supreme Court of Colorado, En Banc.
Aug. 12, 1974.

[186 Colo. 67]

Page 458

Dale Tooley, Dist. Atty., Second Judicial Dist., Brooke Wunnicke, Chief Appellate Deputy Dist. Atty., Denver, for plaintiff-appellant.

Rollie R. Rogers, Colo. State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Duncan W. Cameron, Deputy State Public Defender, Denver, for defendant-appellee.

LEE, Justice.

Pursuant to the duty enjoined upon him by Colo.Sess.Laws 1972, ch. 44, 39--12--102 at 253, the district attorney has appealed from an order of the Denver district court which declared the felony-nonsupport statute, C.R.S.1963, 43--1--1, unconstitutional. Because the statute applies only to men, the court found it to be violative of Article II, Section 29, of the Colorado Constitution, commonly known as the Equal Rights Amendment. The court therefore dismissed an information filed January 15, 1973, charging defendant-appellee with felony-nonsupport of his three children during a period of time commencing June 1, 1968, through October 4, 1972. We reverse the judgment of the district court and remand the cause with directions to reinstate the information.

We are here concerned with those portions of the felony-nonsupport statute dealing with the nonsupport of minor children. It has been brought to our attention that the statute has since been amended to place the obligation of support and impose punishment for violation thereof on both parents. This amendment, which became effective July 1, 1973, is not applicable to the case at bar.

The Equal Rights Amendment became effective January 11, 1973. The amendment provides:

'Equality of the sexes. Equality of rights under the law shall not be denied or abridged by the state of Colorado or any of its political subdivisions on account of sex.'

[186 Colo. 68] In our opinion, the court erred in applying the Equal Rights Amendment to prohibit the prosecution of the alleged criminal conduct which, as noted above, occurred prior to the effective date of the amendment. The presumption is that a constitutional amendment is to be given only prospective application is to be given tention to make it retrospective in operation clearly appears from its terms. Shreveport v. Cole, 129 U.S. 36, 9 S.Ct. 210, 32 L.Ed. 589; Strickler v. Colorado Springs, 16 Colo. 61, 26 P. 313; American Federation of Labor v. American S. & D. Co., 67 Ariz. 20, 189 P.2d 912; State ex rel. Reynolds v. Roan, 213 So.2d 425 (Fla.); Emp. Ret. System v. Budget Dir. Ho., 44 Haw. 154, 352 P.2d 861; Ex parte Dalton, 73 Idaho 542, 255 P.2d 333; State v. Spence & Goldstein, 6 So.2d 102 (La.App.); Dutcher v. Hatch, 19 A.D.2d 341, 243

Page 459

N.Y.S.2d 80; Kneip v. Herseth, S.D., 214 N.W.2d 93. There is no language in the Equal Rights Amendment from which an intention appears to make the amendment retrospective in its operation. It was therefore error for the trial court to dismiss the information on the basis of the Equal Rights Amendment.

Appellee raised the further issue in the trial court, and does here, that the nonsupport statute under which he was charged violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The court specifically declined to consider this constitutional issue, basing its decision solely on the Equal Rights Amendment. Since the issue is a matter of law, we deem it advisable to determine it here rather than to remand it to the trial court.

Appellee's contention is that the statute creates an unreasonable and arbitrary classification resulting in an invidious discrimination against fathers, in favor of mothers, and therefore denies him equal protection of the laws. We disagree with this assertion. The parental duty of support--said to be a principle of the natural law and everywhere recognized as a moral obligation of parents towards their children-has for decades in Colorado been recognized as [186 Colo. 69] the primary responsibility of the father. McQuade v. McQuade, 145 Colo. 218, 358 P.2d 470; Garvin v. Garvin, 108 Colo. 415, 118 P.2d 768; Desch v. Desch, 55 Colo. 79, 132 P. 60....

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17 practice notes
  • Arp v. Workers' Comp. Appeals Bd.
    • United States
    • United States State Supreme Court (California)
    • May 5, 1977
    ...low-income years than men in computing monthly benefit is valid remedy for past economic discrimination); People v. Elliott (Colo.1974) 525 P.2d 457 (imposition on fathers, but not on mothers, of criminal sanctions for failure to support children); Murphy v. Murphy (1974) 232 Ga. 352, 206 S......
  • People v. Boyd, Court of Appeals No. 12CA2607
    • United States
    • Colorado Court of Appeals of Colorado
    • August 13, 2015
    ...with one exception, civil cases, to which section 18–1–410(1)(f) and the Thomas rule do not apply. The only exception, People v. Elliott, 186 Colo. 65, 525 P.2d 457 (1974), was announced just two weeks after Thomas . The parties in Elliott obviously could not have argued Thomas, and the opi......
  • Colorado Dog Fanciers, Inc. v. City and County of Denver By and Through City Council, No. 90SA342
    • United States
    • Colorado Supreme Court of Colorado
    • November 12, 1991
    ...regulate every similar hazard. Williamson v. Lee Optical, 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955); People v. Elliott, 186 Colo. 65, 69, 525 P.2d 457, 459 (1974); see also State v. Peters, 534 So.2d 760, 764 (Fla.Dist.Ct.App.1988), review denied, 542 So.2d 1334 (Fla.1989); ......
  • State v. Choat, No. 17539
    • United States
    • Supreme Court of West Virginia
    • November 18, 1987
    ...to make it retroactive clearly appears from its terms. Torvinen v. Rollins, 93 Nev. 92, 94, 560 P.2d 915, 917 (1977); People v. Elliott, 186 Colo. 65, 68, 525 P.2d 457, 458 For a comprehensive discussion of the legislative history of this amendment as well as its possible impact, see McNeel......
  • Request a trial to view additional results
17 cases
  • Arp v. Workers' Comp. Appeals Bd.
    • United States
    • United States State Supreme Court (California)
    • May 5, 1977
    ...low-income years than men in computing monthly benefit is valid remedy for past economic discrimination); People v. Elliott (Colo.1974) 525 P.2d 457 (imposition on fathers, but not on mothers, of criminal sanctions for failure to support children); Murphy v. Murphy (1974) 232 Ga. 352, 206 S......
  • People v. Boyd, Court of Appeals No. 12CA2607
    • United States
    • Colorado Court of Appeals of Colorado
    • August 13, 2015
    ...with one exception, civil cases, to which section 18–1–410(1)(f) and the Thomas rule do not apply. The only exception, People v. Elliott, 186 Colo. 65, 525 P.2d 457 (1974), was announced just two weeks after Thomas . The parties in Elliott obviously could not have argued Thomas, and the opi......
  • Colorado Dog Fanciers, Inc. v. City and County of Denver By and Through City Council, No. 90SA342
    • United States
    • Colorado Supreme Court of Colorado
    • November 12, 1991
    ...regulate every similar hazard. Williamson v. Lee Optical, 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955); People v. Elliott, 186 Colo. 65, 69, 525 P.2d 457, 459 (1974); see also State v. Peters, 534 So.2d 760, 764 (Fla.Dist.Ct.App.1988), review denied, 542 So.2d 1334 (Fla.1989); ......
  • State v. Choat, No. 17539
    • United States
    • Supreme Court of West Virginia
    • November 18, 1987
    ...to make it retroactive clearly appears from its terms. Torvinen v. Rollins, 93 Nev. 92, 94, 560 P.2d 915, 917 (1977); People v. Elliott, 186 Colo. 65, 68, 525 P.2d 457, 458 For a comprehensive discussion of the legislative history of this amendment as well as its possible impact, see McNeel......
  • Request a trial to view additional results

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