Colorado’s Secret Separate Set of State Laws

I bet you did not know it, but there are two different sets of Colorado state statutes on the internet.  Yep, two completely different sets of state law.  One set for the elite, and the other set for, well, everyone else.

Here is a little background.  I tried checking Colorado state law for a research project I was working on.  Every website I could find linked to the Colorado Revised Statutes on a private third-party website, LexisNexis.  In fact, LexisNexis forces you to sign a legally binding contract before you can even view the statutes.   I called up the Colorado Office of Legislative Legal Services, a department of the Colorado General Assembly, and asked if I could purchase a digital copy of the Colorado Revised Statutes for a reasonable price.  They responded that only the publisher LexisNexis distributes the Colorado Revised Statutes, so I would have to call them.  On a side note, LexisNexis charges $298 dollars for the Ebook version of the Colorado Revised Statutes.  I was willing to pay a fair price, which I thought would be about $25 dollars, not nearly $300.  So I then filed an Open Records Request for the Colorado Revised Statutes.  My idea was to get my own digital copy and put them up on this website as an alternative to LexisNexis.

I dealt with Colorado Office of Legislative Legal Services Director Dan Cartin and Revisor Jennifer Gilroy.  Only after my second formal Open Records request did Director Cartin tell me their little secret: there is an alternative to the LexisNexis version of the Colorado Revised Statutes.  It is right up on the Colorado Office of Legislative Legal Services website — except, for a reason I still don’t know, the apparent official policy is only to mention the LexisNexis version.  The page is semi-private and not linked to from anywhere that I can tell.  I guess it is on a need-to-know basis.  And the general public of Colorado just does not need to know, at least according to the Colorado Office of Legislative Legal Services.

Director Cartin should read Brown v. Bd. of Educ., 347 U.S. 483 (1954) because he is creating his own “separate but equal” with his policies of who may access what version of the Colorado Revised Statutes on the internet.  See my discussion of a potential due process violation below on why the LexisNexis version as the only publicized source of the state statutes is legally inadequate.  

Access for Everyone Else: Colorado Revised Statutes Accessed through LexisNexis

The public set of state statutes meant for general consumption is hosted by LexisNexis.  There is the set of state laws for general consumption.  It appears on the main page of state government websites. It is a policy to link to the LexisNexis version.  The state government websites that link directly to LexisNexis are, but not limited to: Colorado General Assembly (on the right click on “U.S. and Colorado Constitutions” then click on the sublink “U.S. and Colorado Constitutions, Colorado Revised Statutes); Colorado Secretary of State; Colorado Attorney General (scroll down and click on an individual statute); Colorado Courts governmental website (under the heading additional resources part way down the page, click on “search rules and statutes”); Colorado.gov; and even on the Colorado Office of Legislative Legal Services.  I do not know of every state government website available, nor have I checked every state government website available.   However, I have not found a single state government website that did not link to the LexisNexis version of the Colorado Revised Statutes.

Even non-state governmental websites link to the LexisNexis website: the Colorado Bar Association; University of Denver School of Law; University of Colorado School of Law (click on the drop down “what are you looking for,” then click on “state statutes”); and even the City of Longmont.

Colorado Government Links to LexisNexis for official state statute publication.
Colorado Government Links to LexisNexis for official state statute publication.

I think it is fair to say there is some sort of state level policy to link to the LexisNexis version of the state statutes.

Access for the Elite: A Semi-Private Digital Version on the Colorado Office of Legislative Legal Services Website

I know I told you earlier the Colorado Office of Legislative Legal Services links to the LexisNexis version.  It does.  Go ahead and try it.  I’ll wait.

What I had to find out through two different Open Records requests filed with the office of Legal Services is there is a semi-private version on the Colorado Office of Legislative Legal Affairs Website.  The webpage is not linked to by the main site (there may be internal links that I do not know about).

It offers a fully up-to-date official version of the Colorado Revised Statutes. Here is the link to access the official version of the law.  http://tornado.state.co.us/gov_dir/leg_dir/olls/2013titles.htm.

The official version of the Colorado Revised Statutes.
The official version of the Colorado Revised Statutes.

I know what you’re thinking.  Yeah right, this isn’t private.  Look, on the right hand side there is a link to the Colorado Revised Statutes.  This whole thing is on the up and up.  Every other state agency in Colorado is misinformed about where to find the official Colorado Revised Statutes.  The link to the Colorado Revised Statutes (highlighted in red) on the Office of Legislative Legal Services website (as indicated on my screen shot) takes you to the LexisNexis version of the statutes!  The official “2013 C.R.S. Titles for Download” are not linked to anywhere that I could find.  Furthermore, I found it peculiar the title on the website was 2013 C.R.S., instead of the more formal 2013 Colorado Revised Statutes.  Why did the Colorado Office for Legislative Legal Services not formal title?  My guess is conceal the true nature of the website from search engines, and thus their users.

When I searched Google for the 2013 Colorado Revised Statutes, the official semi private website, did not show up on the first four pages or so (then I gave up and stopped looking).  Even though Google did not show a link to the official website, it was peppered with websites that link to the LexisNexis version, including official Colorado government websites.

Search results in Google for 2013 Colorado Revised Statutes
Search results in Google for 2013 Colorado Revised Statutes

What really interested me was when I searched Google again, and searched for the title of the semi-private webpage “2013 C.R.S. Titles for Download” the first link to show up was the official semi-private website.

This text of the Colorado Revised Statutes is not linked to on state government websites
Search Results in Google for 2013 CRS Titles to Download

The official version of the Colorado Revised Statutes is not password protected.  Anyone can use the link above to access them.  Furthermore, whether intentionally or unintentionally, the Colorado Office of Legislative Legal Services put the website in the public domain by allowing Google to index it.  As you can tell from the screen shots, or if you try it yourself, Google’s algorithm performs very well when I request the Colorado Revised Statutes — the Colorado General Assembly’s website shows up as the first link.  Alternatively, when I search for the title of official statutes “2013 C.R.S. Titles for Download” the first link is to the official semi-private statutes.

Google has this search thing down.

Only the Colorado Office of Legislative Legal Services knows why: 1. they do not link to the official version on their own website; and 2. why they did use any descriptive terminology for Google or its users to be able to search effective for the semi-private version.

A Potential Due Process Violation

In one of my first posts on this website, I went into a discussion that since Colorado allows the only available copy of the Colorado Revised Statutes to be published on LexisNexis a potential due process violation.   I am not going to re-post the entire due process discussion here.  Visit the post, “A Case for Ignorance of Colorado Law – Revisited,” to read a more in-depth analysis.

My basic argument was the publication of Colorado Revised Statutes on the internet only through LexisNexis violated procedural due process.

Due process is the idea of fundamental fairness in our justice system. “No person shall be deprived of life, liberty or property, without due process of law.” U.S. Const. amend V; Colo. Const. art. II, § 25.  Included in the notion of fairness is notice. Lambert v. California, 335 U.S. 225, 228 (1957).  The public needs to have notice of the laws, so they can understand and follow them.  Before the internet, Colorado provided the state statutes to public libraries, and courts.  This allowed anyone who wanted to the ability to be able to read and know the law without restrictions.  Everyone has access to a library and court.  Along came the internet.  While Colorado still provides complimentary copies of state statutes to libraries and courts, they did not provide one on the Internet.  LexisNexis does not count as a “complimentary” or “free” copy because you have to give up legal rights and enter a binding contract to read the state statutes.  Never before in the history of the United States was it required to sign a contract to read state law.  The mere idea of it is repugnant to public policy.  We want people to know and obey the law.  Ignorance is no excuse of the law!  

Therefore, when the state of Colorado implies to the public that there is only one source for the Colorado Revised Statutes on the internet, LexisNexis, that disagrees with out idea of fundamental fairness.  Those who can afford the $298 digital version can purchase it (still with limitations, LexisNexis uses DRM on its Ebooks).  However, those who cannot afford to purchase it and do not have the means to get to the local library or courthouse have to give away legal rights to read the law.  This sure seems procedurally unfair to me.  Today, society relies on the internet.  Our computers, smartphones and tablets are used ubiquitously in education, business and our personal lives.  The Colorado Government provides car registration and driver’s license updates through it’s websites, but not the state law.  It would seem like the state law would be the most important thing to place on a state government website.  The Secretary of State makes available all of the state Codes and Regulations on its website.  However, the General Assembly prefers for us to contract away our legal rights to view state law.

I wanted to change this, so I asked for a copy of the Colorado Revised Statutes through an Open Records request.  The response to the first request by Director of the Colorado Office of Legislative Legal Services, Dan Cartin,  indicated that he did not think there was anything wrong with the LexisNexis version.  He responded to my request by directing me to the “free” LexisNexis website.  LexisNexis in their “Terms of Agreements”  places restrictions, including copying anything from their website.

I wrote back and told Director Cartin that I did not find his response sufficient.

1. The LexisNexis website is not free.  I have to agree to LexisNexis’ Terms and Conditions before I am allowed to enter the website (see the screen shot of the agreement in the “Access for Everyone Else” section above).  This is a legally binding contract.  I have to agree not to sue LexisNexis for any reason.  All the statutes on LexisNexis’ “free” site are provided as is, and the implied warranty of merchantability is expressly waived.  What this means is if there is anything wrong with the statutes, and you relied on LexisNexis to provide you accurate information because it is the only source on the internet, then tough luck.  If for some reason there is grounds for a lawsuit that is not covered by their disclaimer or limitation of liability, then you agree to sue in New York.  Yep.  If you are a Colorado citizen, looking up Colorado law, and there is a problem with the law you relied upon, you have to go to New York to try to sue LexisNexis.  All of these things you have to give up in order to enter LexisNexis’ website is called legal detriment.  Legal detriment is a term of art that basically means giving up legal rights.  To make a binding contract you need three things: an offer, acceptance, and consideration.   The offer LexisNexis makes is that little box appearing on your screen asking you to agree.  If you click agree you have made an agreement and are 2/3rds of the way to a contract.  The last part is consideration.  Consideration can be thought of a bargained for exchange where you each get something.  You get view the laws of the state, while LexisNexis gets you to promise not to sue, if you do sue, you sue in New York, etc.  The Colorado Supreme Court found this to be a valid basis of consideration to make a legally binding contract.  See Troutman v. Webster, 257 P. 262, 263-64 (Colo. 1927) (noting “it is a consideration if the promisee, in return for a promise, does anything legal which he is not bound to do, or refrains from doing anything which he has a right to do, even though there is no actual loss or detriment to him or actual benefit to the promisor”).

So you have to make a legally binding contract to even enter LexisNexis’ site.

2. LexisNexis’ “free” site is not the same as getting the statutes from the Colorado General Assembly, either.  In their Terms of Service, LexisNexis provides a disclaimer noting that the content is provided “as is,” furthermore it disclaims basic implied contractual warranties, such as the implied warranty of merchantability.  See Terms of Service section 16.

I have no way of knowing if the content (the state laws) LexisNexis provides on their “free” site are accurate or not. This “as is” clause and since there is no guarantee of accuracy on LexisNexis’ part potentially violates Colo. Rev. Stat. § 2-5-118 (4) (stating “copies of the Colorado Revised Statutes, when published, reprinted, or distributed to interested citizens, accurately state the law in effect when those copies are prepared”). By holding out the LexisNexis site to be the official “free” version of the Colorado Revised Statutes the Colorado Legislature may very well be breaking their own law, since LexisNexis expressly disclaims any claim to accuracy with their “as is” clause.
Why does the Colorado General Assembly’s Office of Legislative Legal Services force Coloradans to give up legal rights, in a binding contract, to view the Colorado Revised Statutes on the internet, while they have a separate copy free of the legal hoops?   I don’t know.  Either way, since there is a functioning website on Colorado government owned websites that have the Colorado Revised Statutes already on them, it appears Office of Legislative Legal Services and the state of Colorado may be violating constitutionally protected due process rights by holding out that LexisNexis has the only copy on the entire internet.

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