Legislator's contest is strictly legal

August 18, 1991|By Los Angeles Daily News

SACRAMENTO, Calif. -- California has 120 state lawmakers who are devoted to drafting new laws -- and one who says at least part of his mission is to take odd and obsolete laws off the books.

For the past year, state Assemblyman Richard E. Floyd has been collecting entries for his "There Ought NOT to Be a Law" contest. Mr. Floyd, who also is a prolific author of gambling and liquor legislation, plans to choose a winner later this year.

So far, about four dozen people have responded with nominations ranging from recently adopted controversial laws such as the state's mandatory seat belt law and auto insurance statutes to old, unenforced and, in some cases, obsolete laws such as those governing dueling or prohibiting professional boxing.

For example, Donald Miller suggested reducing the penalty for conspiracy to commit murder. He's an inmate at the state prison in San Luis Obispo, where he is serving a 25-year term for conspiracy to commit murder.

The penalty for a conspiracy is the same as the penalty for murder whether or not a killing actually takes place.

This, Miller says, "encourages the offender to commit the murder." He suggested a lesser penalty in cases -- such as his -- where no murder is actually committed.

Most of Mr. Floyd's contestants, however, have not been charged with violations of the laws they suggested repealing.

Michael B. Stone of Los Angeles came across a century-old section of the state's Penal Code dealing with duels while doing research as a first-year student at Southwestern University Law School. Duelists may not hold public office, work in a civil service job or vote. Winners must support the loser's children and pay any debts of a person slain or permanently disabled in a duel.

A sheriff who allows a duel to proceed can be fined $1,000.

And killing someone in a duel carries a maximum term of four years in prison -- a relative bargain when a first-degree murder conviction carries a minimum sentence of 15 years.

"L.A. street gangs, take note," Mr. Stone said.

Jim Hamblin, a radio reporter based in Sacramento, hit the law books after hearing a Stan Freberg parody of "Dragnet" in which someone was arrested on a 412 -- overacting.

Penal Code Section 412, adopted in 1872, actually prohibits professional boxing and makes it a crime to leave the state to watch a prizefight. The same law allows amateur boxing and empowers sheriffs, constables and marshals to stop any mismatch and to enlist help from "as many peace officers or male citizens of the state as may be necessary for that purpose."

A voter initiative in 1928 legalized professional boxing -- but it's included in a different section of law, and the old one was never repealed.

Mr. Floyd has received about a half-dozen entries objecting to the 1989 law that prohibited the sale or possession of certain semiautomatic rifles. But only one entry mentioned the ban on blowguns, Penal Code Section 12020.

"If blowguns are illegal," said contestant James K. Mattis of the Los Angeles suburb of Sunland, "then only headhunters will have blowguns."

Other entries in the dumbest law contest include drunken sky-diving.

"I can't picture any other way to sky-dive," said contestant Bob Letskus of Roseville.

Mr. Floyd began the contest last year to publicize his bill to repeal a law that banned "any public so-called marathon dance, walkathon, endurathon, speedathon, or any public contest of human endurance dancing, walking, running, skipping, jumping, sliding, gliding, rolling or crawling."

All of that became legal again Jan. 1 under Mr. Floyd's bill.

His contest prompted another measure that was just signed by Gov. Pete Wilson and has provided possible fodder for several other bills.

Governor Wilson approved legislation to repeal eight laws limiting free speech that have been rejected as unconstitutional by state and federal courts but never wiped off the books.

Among them is a criminal slander measure last used in 1974, when a now-defunct tabloid called the L.A. Star published a photograph that superimposed the head of actress Angie Dickinson over a nude body.

The Floyd bill also repeals a vaguely worded statute against "outraging public decency."

That measure is believed to have been used last in 1964 to charge a woman who modeled a topless swimsuit during a fashion show at a restaurant in the Los Angeles suburb of Hawthorne -- a case in which police declined to make an arrest until the show's organizer produced six people to sign complaints in order to generate publicity.

The model was acquitted of lewd conduct but convicted of "outraging public decency."

In a 1966 opinion overturning her conviction and invalidating the law, appellate Justice Otto Kaus, who later served on the California Supreme Court, wrote that topless modeling can't outrage public decency "in a society in which family magazines, which no one thinks of hiding from children, have for years played peek-a-boo with the female breast."

L The law, nevertheless, had remained on the books ever since.

Mr. Floyd quipped that "if the law against outraging public decency were strictly enforced, half the people I know would be in jail."

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