People v. Lepik, No. 79SA480

• Docket Nº: No. 79SA480
• Citation: 629 P.2d 1080
• Case Date: June 22, 1981
• Court: Supreme Court of Colorado

Page 1080

629 P.2d 1080 The PEOPLE of the State of Colorado, Plaintiff-Appellant,
v.
Kenneth LEPIK, Defendant-Appellee. No. 79SA480. Supreme Court of Colorado, En Banc. June 22, 1981.

Page 1081

J. E. Losavio, Jr., Dist. Atty., Amy S. Isaminger, Deputy Dist. Atty., for plaintiff-appellant.

J. Gregory Walta, Colorado State Public Defender, James S. Dostal, Stephanie H. Yukawa, Deputy State Public Defenders, for defendant-appellee.

LEE, Justice.

Defendant, Kenneth Lepik, was charged with the offenses of Introducing Contraband in the First Degree, section 18-8-203, C.R.S. 1973 (1978 Repl. Vol. 8), and Introducing Contraband in the Second Degree, section 18-8-204, C.R.S. 1973 (1978 Repl. Vol. 8).

The charges arose out of an incident on December 11, 1977, involving the defendant, a security guard at the Colorado State Hospital in Pueblo, who was accused of bringing alcoholic beverages (First-Degree Introduction) and a pair of pliers (Second-Degree Introduction) into the state hospital.

The defendant moved to dismiss the charge of Introducing Contraband in the Second Degree on the ground that the statute unconstitutionally delegated the power to define a crime to an administrative officer, in violation of Article III of the Colorado Constitution. The district court granted the motion to dismiss and the People have appealed. We affirm the judgment of dismissal.

The Second-Degree Introduction statute ¹ prohibits the introduction into a detention facility of "contraband." "Contraband" is defined as any article or thing (other than

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those things specifically prohibited by the statute defining First-Degree Introduction, section 18-8-203, C.R.S. 1973) ² which a person confined in a detention facility is prohibited from obtaining or possessing by statute or a rule, regulation or order lawfully issued by the administrative head of the detention facility. ³ Section 18-8-204(2), C.R.S. 1973.

The district court found the statute was void because it lacked adequate legislative standards to guide administrative discretion and therefore the statute violated Article III of the Colorado Constitution by delegating the legislative power to define a crime to an administrative officer.

It is a fundamental principle that only the General Assembly may declare an act to be a crime and that power may not be delegated to persons not elected by nor responsible to the People. Casey v. People, 139 Colo. 89, 336 P.2d 308 (1959); Sapero v. State Board, 90 Colo. 568, 11 P.2d 555 (1932); People v. Lange, 48 Colo. 428, 110 P. 68 (1910). Although the power to make a law may not be delegated, the power to determine a state of facts upon which the law depends may be delegated. People v. Giordano, 173 Colo. 567, 481 P.2d 415 (1971); Casey v. People, supra; Sapero v. State Board, supra. The delegation of power to determine the state of facts upon which the law operates may not, however, be left to the uncontrolled discretion of the executive or...