People v. Lee , 1986 Colo. LEXIS 549 ( 1986 )

DUBOFSKY, Justice,

specially concurring:

I concur in the majority’s decision to reverse the judgment of the district court, and to order the reinstatement of the information in this case. However, I write separately to explain my view of the questions involved.

The majority devotes some attention to the standing of the defendant to challenge Colorado’s commercial bribery statute, § 18-5-401, 8 C.R.S. (1978), on the ground of overbreadth. However, despite the district court’s use of the term “overbreadth” in its ruling and order, I believe that this case does not involve a true overbreadth challenge.

Under the doctrine of overbreadth a statute is invalid if it includes within its proscriptions constitutionally protected conduct, People v. Enea, 665 P.2d 1026 (Colo.1983), specifically, first amendment freedoms or other fundamental rights. People ex rel. City of Arvada v. Nissen, 650 P.2d 547 (Colo.1982); People v. Garcia, 197 Colo. 550, 595 P.2d 228 (1979). Neither the district court nor the defendants in this case have suggested that the commercial bribery statute potentially infringes upon any first amendment or other constitutionally protected right.

The defendants’ and the district court’s references to overbreadth are found in their discussions of the question of improper delegation. A statute may be challenged as an improper delegation where the statute fails to provide sufficient guidance to third parties charged with determining its applicability. See, e.g., People v. Latsis, 195 Colo. 411, 578 P.2d 1055 (1978), People v. Moseley, 193 Colo. 256, 566 P.2d 331 (1977). The question whether a legislative enactment contains sufficient standards under the delegation doctrine often is related to the question whether the statute is unconstitutionally vague. Both the trial court and the defendants use the term “overbreadth” as a synonym for vagueness in the context of the nondelegation doctrine.

I agree with the majority’s conclusion that the statutory terms at issue here are sufficiently specific. The defendants have failed to meet their burden of demonstrating that the statute is unconstitutional. For this reason, although I think the majority’s discussion of the doctrine of over-breadth and standing to assert overbreadth is unnecessary in the present case, I concur in the majority’s decision to reverse the judgment of the district court.

I am authorized to say that Chief Justice QUINN and Justice LOHR join in this special concurrence.