An appeals judge has urged the Colorado Supreme Court to revise its 1884-era standard for finding laws unconstitutional, advocating for the state’s court system to lower its level of scrutiny to conform with its federal counterpart. 

Judge Daniel M. Taubman, writing in a case the Court of Appeals decided on Feb. 4, believed the current directive for reviewing state laws is “(1) inconsistent with the Framers’ intent regarding the separation of powers; (2) not followed by the United States Supreme Court; and (3) illogical.”

The 137-year-old decision in Alexander v. People set the state Supreme Court's precedent that judges may only void a law if it violates the state constitution beyond a reasonable doubt. The U.S. Supreme Court, Taubman noted by contrast, established a less stringent federal threshold in 1927.

“Thus, for the past ninety-four years, the United States Supreme Court and the Colorado Supreme Court have applied different standards to assess whether a statute is constitutional,” Taubman noted.

While he is not the first judge to raise a concern about the discrepancy, Taubman said the upshot is to give an “extreme” degree of deference to the state legislature and to apply different standards to the same law in state and federal courts.

Multiple legislators reached for comment on Thursday declined to weigh in without first reading the opinion.

The subject arose during the consideration of an appeal from Cheryl Lynette Plemmons. La Plata County Sheriff’s deputies responded to Plemmons’ home for a welfare check in December 2016. Reports stated she was intoxicated and berated the officers before calming down to the point of talking to one of them about her suicide plans.

After she threw a pen, hitting one of them, the deputies handcuffed Plemmons, intending to transfer her to a medical center for treatment. As they assisted her in donning her coat and boots, Plemmons spat in both of their faces. The deputies then placed her under arrest.

In the police vehicle, Plemmons continued to spit at the deputies, to the point that one of them placed a spit hood on her head.

A jury subsequently found her guilty on three counts of felony second degree assault under the law that criminalizes expelling bodily fluids onto a first responder with “intent to infect, injure, or harm another person.”

Plemmons appealed her conviction, arguing the evidence did not show she intended to injure or infect the deputies. Further, there was no definition of what “harm” is, meaning violators have no notice of what kind of behavior is outlawed. Therefore, it is unconstitutional, she contended.

Her lawyer, deputy public defender Jacob B. McMahon, told the appeals judges during oral argument that courts could still presume the legislature passed a constitutional law, but without throwing up the highest possible standard to overturning it. He asked them to strike the word "harm" from the law.

"Ms. Plemmons' position is this court has a duty to strike down, not uphold, unconstitutional statutes," he said.

In determining what the term “harm” meant, the court looked to a 2015 change from the General Assembly that originally would have made it a felony to spit on a peace officer for the reasons now mentioned — and also for the purposes of harassing, annoying, threatening or alarming. Instead, those latter behaviors remained misdemeanors, and infecting, injuring and harming became felonies.

“No matter what Plemmons hoped to accomplish by her actions, no reasonable person could conclude that they were permissible under Colorado law,” noted Judge Matthew D. Grove in the Court of Appeals majority’s opinion.

Sen. John Cooke, R-Greeley, one of the bill’s proponents, said at the time that he wanted the law to reflect the “psychological damage” of unwanted contact with bodily fluids.

Based on that understanding, the three-judge appellate panel decided that “harm” encompassed effects other than physical, in which body fluids were not actually dangerous to a first responder’s physical health. Given her other behavior toward the deputies during the encounter, the court determined the evidence was sufficient for her assault convictions to stand.

Taubman, who is retired but sat on the panel at the chief justice’s assignment, saw a problem with that interpretation, given the deputies had not testified they suffered psychological or emotional harm from the spit.

If the Supreme Court’s standard of evaluating constitutionality beyond a reasonable doubt were not the operating procedure, Taubman wrote, he would have invalidated the law because the differences between the lesser offense of spitting to harass and the greater offense of spitting to harm were not obvious.

“[O]ne could not reasonably conclude what conduct the second degree assault statute was intended to punish,” he added.

The case is People v. Plemmons.

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