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Certification of Question of Law. United States Court of Appeals for the Tenth Circuit, Case No. 13-1369.
Certified Question Answered.
Having accepted jurisdiction over this certified question of law from the Tenth Circuit, the supreme court holds that state law does not preempt Englewood's Ordinance 34. The ordinance implicates a matter of mixed state and local concern by effectively barring sex offenders from residing in Englewood, but it does not conflict with Colorado's statutory regime for regulating sex offenders as required for state preemption. Nothing in the state regulatory regime prevents home-rule cities from barring sex offenders from residing in their communities, nor is there anything that suggests sex offenders are permitted to live wherever they wish. Furthermore, a state statutory provision specifically authorizes local law enforcement to decline an offender's application for residency if it violates local law. As such, Ordinance 34 does not conflict with state law and thus is not preempted. This Court therefore answers the certified question in the negative and returns this case to the Tenth Circuit for further proceedings.
For Plaintiff-Appellee: Daniel D. Williams, Jennifer L. Sullivan, Hetal J. Doshi, FAEGRE BAKER DANIELS LLP, Boulder, Colorado; Mark Silverstein, Sara Rich, ACLU Foundation of Colorado, Denver, Colorado.
For Defendant-Appellant: Thomas S. Rice, Monica N. Kovaci, Senter Goldfarb & Rice, L.L.C., Denver, Colorado.
For Colorado Municipal League, Amicus Curiae: Rachel L. Allen, Colorado Municipal League, Denver, Colorado.
JUSTICE EID delivered the Opinion of the Court. JUSTICE HOOD concurs in part and dissents in part, and JUSTICE GABRIEL joins in the concurrence in part and dissent in part.
[¶1] We accepted jurisdiction over this certified question of law from the United States Court of Appeals for the Tenth Circuit. See C.A.R. 21.1. The Tenth Circuit has asked us whether the City of Englewood's Ordinance 34, which effectively bars certain sex offenders from residing within the city, is preempted by Colorado law. 560 Fed.Appx. 726 (10th Cir. 2014) (unpublished order). As a preliminary matter, we conclude that because both state and local governments have an interest in governing the matter of sex offender residency, the ordinance concerns an issue of mixed state and local concern. As such, it may stand as long as it does not conflict with state law on the subject. Webb v. City of Black Hawk, 2013 CO 9, ¶ 16, 295 P.3d 480, 486. The federal district court in this case concluded that such a conflict did exist because Colorado has generally opted for a policy of individualized treatment of sex offenders, and the Englewood ordinance acts as an effective bar to residency. Ryals v. City of Englewood, 962 F.Supp.2d 1236, 1249-51 (D. Colo. 2013). We disagree with the federal district court and find no conflict. There is no state law that requires individual consideration with regard to the residency of sex offenders, and in fact state law and the ordinance may both be given full effect. Because we conclude that no conflict exists between state law and the ordinance, Ordinance 34 is not preempted by state law. We therefore answer the certified question in the negative and return this case to the Tenth Circuit for further proceedings.
[¶2] In 2001, Stephen Brett Ryals had a sexual relationship with a sixteen-year-old girl he coached on a high school soccer team. He pled guilty to criminal attempt to commit sexual assault on a child by one in a position of trust and was sentenced to seven years of probation. After violating his probation by continuing to see the victim, he was sentenced to two years in prison. He was released in April of 2003. Under the Colorado Sex Offender Registration Act (" CSORA" ), § § 16-22-101 to -115, C.R.S. (2015), he was required to register as a sex offender for a decade after his release. § 16-22-103(1)(a). He is under no other state supervision.
[¶3] In July of 2006, the Colorado Parole Board informed the City of Englewood, a home-rule municipality, that it planned to place a sexually violent predator at an extended-stay hotel that was within a block of a daycare facility. Originally, the placement was planned in Greenwood Village, but Greenwood Village passed a local ordinance that essentially banned sex offenders from residing in the city. In response, Englewood passed its own emergency ordinance in September
2006 that operated in the same way, effectively barring sex offenders from residing in the city.
[¶4] The ordinance applies generally in two instances. First, it applies to sexually violent predators as defined by section 18-3-414.5, C.R.S. (2015). Second, it applies to those sex offenders who, like Ryals, are required to register under CSORA because they have either been " [c]onvicted of a felony for an offense requiring registration," have " multiple convictions for offenses requiring registration," or their " offense(s) requiring registration involved multiple victims." EMC 7-3-3(A)(ii)a--b.
[¶5] The ordinance makes it unlawful for people in either group to " establish a permanent residence or temporary residence within two thousand feet (2,000') of any school, park, or playground or within one thousand feet (1,000') of any licensed day care center, recreation center or swimming pool (other than pools located at private, single-family residences)." EMC 7-3-3(A). According to estimates, these restrictions make 99% of the city off limits to qualifying sex offenders.
Ryals, 962 F.Supp.2d at 1241.
[¶6] The stated intent of the ordinance is " to serve the City's compelling interest to promote, protect and improve the public health, safety and welfare by creating areas, around locations where children regularly congregate in concentrated numbers, where sexual predators and specified sexual offenders are prohibited from establishing temporary or permanent residence." EMC 7-3-1.
[¶7] In 2012, Ryals purchased a home in Englewood. After buying the home, he called the local police to ask about the process of registering as a sex offender. An officer told him that, because he was a qualifying sex offender under Englewood's Ordinance 34, he was not allowed to live within the city limits. Nevertheless, Ryals went to the Englewood police station the next day to attempt to register. He was issued a citation for violating the ordinance.
[¶8] He then sued Englewood in the U.S. District Court for the District of Colorado, asserting, among other claims, that Ordinance 34 is preempted by Colorado's sex offender regulations. The criminal proceeding against him stemming from the citation was stayed while he challenged the validity of the ordinance.
[¶9] The federal district court held that the ordinance was preempted by Colorado state law. First, the court concluded that the ordinance addressed a matter of mixed state and local concern because it implicated both local and state interests.
Ryals, 962 F.Supp.2d at 1249 (finding that the city has a valid interest in regulating land use and protecting its citizens but that the ordinance implicated " substantial state interests," including " the consistent application of statewide laws to fulfill the goal of managing and supervising sex offenders" ). It then concluded that, in its operation, Ordinance 34 conflicted with the state's comprehensive regime for regulating sex offenders and therefore was preempted by state law. Id. It reasoned that the state had adopted an individualized approach to sex offender treatment, and that the ordinance conflicted with such an individualized approach because it did not, on an offender-by-offender basis, consider " the nature of the offense, the treatment the offender has received, the risk that he or she will reoffend against children, and the evaluation and recommendations of qualified state officials" when determining whether a sex offender could reside within the city. Id. at 1251.
[¶10] Englewood appealed the ruling to the Tenth Circuit. The circuit court determined that " every step of [the issue's] resolution is firmly within the province of Colorado law" and certified the question to this Court under Tenth Circuit Rule 27.1 and C.A.R. 21.1. 560 Fed.Appx. at *729.
[¶11] To determine if state law preempts a home-rule city's ordinance, we engage in a two-step analysis.
See Webb, ¶ ¶ 16, 43, 295 P.3d at 486, 492. First, we ask whether the issue the ordinance regulates is one of local, statewide, or mixed local and statewide concern. Id. at ¶ 16, 295 P.3d at 486. If we conclude that the issue is of mixed concern, as we do here, we then ask whether the ordinance conflicts with state
law on that issue. Id. at ¶ 43, 295 P.3d at 492. We conclude that Ordinance 34 does not conflict with any provision of state law. Therefore, it is not preempted.
[¶12] Colorado's preemption doctrine begins with Article XX, section 6 of the Colorado Constitution, which grants municipalities " home rule" authority to govern " local and municipal matters." Colo. Const. art XX, § 6. In order to determine the boundaries of state authority vis-à-vis the authority of a home-rule municipality, we have developed three categories into which a specific issue may fall: (1) matters of local concern, (2) matters of statewide concern, and (3) mixed matters of state and local concern.
Webb, ¶ 18, 295 P.3d at 486. Both the home-rule city and the state may legislate with regard to matters of local concern, but in the event of a conflict, the home-rule provision prevails over the state provision. Id. In matters of statewide concern, the state legislature has plenary authority, and the home-rule city has no power to act unless the constitution or a state statute specifically affords it such power. Id. For matters of mixed state and local concern, both the home-rule city and the state may regulate, so long as the regulations do not conflict. Id. In the event of a conflict, the state law preempts and supersedes the local provision. Id. Consequently, to determine whether state law preempts a local law under Article XX, section 6, we must first ask whether the regulated matter is one of local, state, or mixed local and state concern. We have held that such a determination is a legal question. Id. at ¶ 19, 295 P.3d at 486.
[¶13] We make this determination on a case-by-case basis, considering the relative interests of the state and the municipality in regulating the matter. Id. Although we may consider any factors we deem relevant, we have consistently consulted four factors in making this determination: (1) the need for statewide uniformity; (2) the extraterritorial impact of the regulation at issue; (3) whether the matter has traditionally been regulated at the state or local level; and (4) whether the Colorado Constitution commits the matter to state or local regulation. Id. As a practical matter, it is rare for a matter to " fit neatly within one of th[e] three categories." Id. Before considering the four factors, we briefly describe the state's sex offender regulations.
[¶14] Colorado's sex offender scheme has three main features relevant to our analysis: management of sex offenders by the Sex Offender Management Board (" SOMB" ), sex offender registration under CSORA, and parole board supervision of offenders on supervised release or subject to the Colorado Sex Offender Lifetime Supervision Act of 1998 (" SOLSA" ).
[¶15] In 1992, the Colorado General Assembly created the SOMB " to protect the public and to work toward the elimination of sexual offenses." § 16-11.7-101(1), C.R.S. (2015). It tasked the SOMB to " comprehensively evaluate, identify, treat, manage, and monitor adult sex offenders who are subject to the supervision of the criminal justice system" by establishing " evidence-based standards for the evaluation, identification, treatment, management, and monitoring of adult sex offenders." § § 16-11.7-101(1), (2).
[¶16] One of the SOMB's duties is to determine the " best practices for living arrangements for and the location of adult sex offenders within the community." § 16-11.7-103(4)(g), C.R.S. (2015). Another is to " develop, implement, and revise, as appropriate, guidelines and standards to treat adult sex offenders." § 16-11.7-103(4)(b). The SOMB does this by publishing its " Standards and Guidelines for the Assessment, Evaluation, Treatment and Behavioral Monitoring of Adult Sex Offenders." Only one of these guidelines directly pertains to sex offender residency, providing that, when a sex offender seeks to change residences, " any change of residence must receive prior approval by the supervising officer." Standards and Guidelines § 5.620(K) (2011).
[¶17] At the request of the General Assembly, the SOMB drafted a paper called " Report on Safety Issues Raised by Living Arrangements for and Location of Sex Offenders
in the Community." In the report, the SOMB examined residency restrictions such as the one in Englewood, found that they are counterproductive to public safety, and recommended against them. While this report is " vital to inform the decisions" of the General Assembly, § 16-11.7-109, C.R.S. (2015), it is not itself binding law, and the General Assembly has taken no legislative action in response to it. On the contrary, the legislature rejected a 2006 attempt to adopt a statewide residency standard.
[¶18] The second chief feature of Colorado's sex offender regulatory regime, CSORA, requires adults convicted of certain sex crimes to register with local law enforcement in the jurisdiction where they live. § 16-22-108(1)(a)(I), C.R.S. (2015); see also § 16-22-103. Local law enforcement is responsible for ...