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SALT LAKE CITY (AP) -- Courts may overturn state laws they deem unconstitutional, but the 10th U.S. Circuit Court of Appeals says only the legislatures can take them off the books.
The ruling was handed down Thursday in the case of a Salt Lake County man who had been cited under Utah's flag desecration law, but the charge had been dropped by the county's district attorney.
The Denver-based appellate court ruled that the resident, Kris Winsness, did not have standing to pursue the case because the charge had been dismissed.
The appeals court ruled that a second plaintiff, Ken Larsen, also did not have standing. Larsen, a Personal Choice Party candidate for governor, handed out replicas of the Utah flag that bore his signature, but he was never prosecuted. He contended that he still feared prosecution.
Winsness wanted the state law declared unconstitutional, in accordance with a U.S. Supreme Court ruling, and removed.
The appeals court said that declaring Utah's statute unconstitutional would be redundant in light of the U.S. Supreme Court's 1989 ruling striking down the Texas flag desecration law.
The ruling by Judges Michael McConnell, Monroe McKay and Timothy Tymkovich also said, "There is no procedure in American law for courts or other agencies of government -- other than the legislature itself -- to purge from the statute books laws that conflict with the Constitution as interpreted by the courts."
They said the weight of precedent by U.S. Supreme Court rulings generally protects citizens from being prosecuted under unconstitutional laws.
In October 2002, Kris Winsness burned the image of a smiley face onto a U.S. flag and hanged it on his garage door.
Neighbors complained to the sheriff's office, a deputy took the flag as evidence and Winsness was charged with violating the state's flag desecration law, a class B misdemeanor.
Prosecutors dismissed the charge without prejudice, allowing them to refile the charge at any time. In an affidavit, county District Attorney David Yocom assured that his office would not prosecute anyone under the statute.
During oral arguments held at the University of Utah last August, attorney Brian Barnard argued that Winsness still was at risk of being charged under the statute again, even after Yocom leaves office.
The appeals court said that such a threat was not realistic. They said there is a "deterrent effect of damages actions against executive officials who violate clearly established constitutional rights."
(Copyright 2006 by The Associated Press. All Rights Reserved.)
