Colorado Court Rules Roadside Cross "Litter," Not "Venerated Object" Introduction

On April 7, 2001, Rodney L. Scott, a resident of Byers, Colorado, which is east of Denver, was tried in a criminal case for "desecrating an object venerated by the public." The facts alleged in the case were that Scott illegally removed a roadside memorial, complete with Christian cross, from the median strip of an interstate highway. Roadside memorials, commemorating the death of a loved one, have become increasingly popular.

Robert Tiernan, who has handled several cases for the Foundation over the years, represented Mr. Scott free of charge. At the end of the prosecution's case, he moved for dismissal. The judge granted the motion and issued the (excerpted) opinion set forth below. The opinion is important because most if not all of the states have similar traffic laws and regulations dealing with littering, unauthorized advertising, and adverse possession.

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County court, County of Adams, State of Colorado Criminal Action No. 00- M-2096.

The people of the State of Colorado, Plaintiff, v. Rodney Lyle Scott, Defendant.

The hearing in this matter commenced on the 5th day of April, 2001, before the Honorable Jeffrey L. Romeo, Judge of the County Court, Division VI.

THE COURT: In regard to the issue of desecration, if Mr. Scott had gone to a graveyard and removed a headstone and taken it to the dump, I think clearly the jury could infer . . . that that was in fact desecration, even though it was not otherwise written upon, damaged, or whatever.

The real concern of the Court in this particular matter is whether or not the Court can find as a legal matter this [roadside cross] is a "venerated object." Venerated object is not defined in the statute. . . .

In this particular matter, People's Exhibit One shows the memorial that was created, a three-foot high cross put in the ground, using metal rod and two-by-fours . . . a pretty substantial piece of cross. Now, I know some of the testimony said they don't think that it necessarily meant a religious cross. Maybe it did and maybe it didn't. Passersby may or may not infer that, although it's a pretty common assumption seeing a cross with flowers and someone's name written on it, one might consider that to be a cross or religious symbol. The question here, though, is whether or not this was something that legally can in fact be considered a venerated object.

As the District Attorney has noted in its brief, there is no statute authorizing these memorials. Now, the District Attorney goes on, expressing that there is nothing prohibiting these memorials. The Court finds differently.

In regard to the facts, this memorial was put up by family members, the stepfather and some friends . . . on a public right-of-way, at Colfax and I-70. There's no dispute about that. This is a piece of public ground; it is not private; there was no authorization to do that. And, as Mr. Hopkins states, virtually quote, they "cannot give permission to put memorials on state property." They have no authority to do that. It's state property. . . . Once it's put up, technically it is abandoned property. It is abandoned as a matter of law.

There is no doubt that these are placed there very lovingly, that it gives great comfort apparently to the people that have put them up. But this is a legal issue. This is not an emotional issue. And the fact of the matter is, technically, legally, that's abandoned property, and it doesn't matter whether it's a cross, a piece of wood . . . could be a bar of gold . . . it has nothing to do with the intrinsic value of it; in other words, whether it has any monetary value, or personal value. . . .

Secondly, as I said, this is done on a public roadway. It is done without authorization. . . . The State Legislature has in fact been approached to approve these, and they've rejected that.

There's another question. Are there other public policy issues which either support or countermand or contradict the idea that these can be venerated objects? I think there are. One, as I said, the Legislature's refusal to enact legislation when asked to protect these. That militates against any protection for these. Two, adverse possession. In this particular case, if I were to accept the District Attorney's theory as proposed in its memorandum, essentially it would allow people to adversely possess land against the people of the State of Colorado.

Many times people are confused, lay people especially, saying, well, it's public property, and I can do what I want with it. But, everyone knows you really can't do that. You can't go to a public park and erect a structure; you can't say, it is now mine. Mr. Breden testified it was his opinion that it's "his spot forever." Well, that evinces an intent to keep this up for as long as he's alive; that was his statement. The fact of the matter is, that constitutes adverse possession against the people of the State of Colorado.

Next, in regard to advertising devices, such markers put up by private citizens along state highways in our right-of-way . . . are illegal, and now they're saying the maintenance crews must remove them. Under *43-1-421, no person other than the Department of Transportation . . . may without written approval of the Department erect or maintain any "advertising device." Now, here's the sticking point that I'm sure may confuse especially lay people, but not the attorneys. "Advertising device" under the statute does not mean what you may think it means.

"Advertising device" you may think means billboards . . . the old Burma Shave signs, those sorts of things. This Colorado Supreme Court decided in the case of George W. Pigg v. Department of Highways, 746 P. 2nd, 961 (1987), this statute applies to noncommercial speech, and said:

"Non-commercial signs pose a threat to the goals underlying this act, as much as commercial signs. The act is designed for further protection of the public investment in the highway system, promotion of safety on the highway system, recreation of public travel, promotion of public pride, spirit of both state and local basis, preservation of the enhancement and natural beauty of this state, and the economic well being by attracting other travelers to this state."

And they go on to say, "It's self-evident that the advertising device detracts from the natural scenic beauty visible from the highway, whether it bears a commercial message or a non-commercial message. Also--to the extent the State is concerned about the safety of travelers when drivers are distracted by reading signs--the concern does not depend on the nature of the message being communicated."

And, I find in this particular matter, these roadside memorials clearly send a message. That's what it was intended to do, and in fact, the testimony of Ms. Breden makes that clear. She said, what was the purpose? The purpose was to acknowledge the loss of her son . . . a valid purpose . . . unfortunately in the wrong place, on a state highway . . . and to slow people down.

Further, an additional statute the Court needs to consider is *42-4-1406, Foreign Matter on Highway Prohibited. That statute says, "No person shall throw" or, in this case, "deposit" (and the Court finds erecting this cross and all these other objects is depositing upon a highway), "any glass, bottles, stones, nails, tacks, wires, or other substance likely to injure any person, animal, or vehicle, upon a highway."

In this particular case, I find that three-foot-tall two-by-four cross does in fact have the likelihood to injure persons, animals, or vehicles on the highway.

So, I find that in fact that does violate that statute, and any person who violates that statute commits a Class B traffic infraction. That's a criminal statute--albeit, a small traffic infraction . . . .

Finally, another statute that needs to be considered is *18-4-511, Littering of Public or Private Property.

It says, "Any person who deposits, throws, or leaves any litter on a public or private property or waterways, commits littering." Littering is a Class 2 petty offense, punishable by a mandatory fine and could be up to a thousand dollars on a second conviction.

Litter has a legal definition, and the Court is bound by the legal definition, not what someone may think is used in Webster's dictionary or might be used in common conversation. It does in fact constitute litter upon the highway. It's a Class 2 petty offense to do that.

The Court finds that here we have abandoned property on a public roadway, not placed there with authorization, in contravention of at least four public policies, and the Legislature has refused in fact to protect these roadside memorials. To allow them would be to allow people to adversely possess land against the state. They constitute an advertising device in violation of that statute. This particular one constitutes a danger, a hazardous substance being placed there, and constitutes litter, two of those being criminal statutes.

It would be a legal and logical absurdity to say that this is litter on one hand but must be venerated in the very next second. It's a legal impossibility, a logical impossibility. And the Court has to try and construe these statutes together so that they make sense. And the only way they make sense is that these roadside memorials are not venerated objects as a matter of law; that they violate these other statutes; and by violating these other statutes, they lose any ability to be protected under *18-9-113.

Therefore, the Court finds as a matter of law, this roadside memorial is not a venerated object. Therefore, the Court must grant judgment of acquittal.

 


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