City of Northglenn v. Ibarra

Justice COATS,

dissenting:

Because I do not agree that Northglenn’s ordinance suffers from the constitutional or statutory shortcomings identified by either the majority opinion or the district court, I respectfully dissent. I am most concerned by the majority’s analysis leading it to invalidate application of the ordinance to a particular class of registered sex offenders on the grounds that this particular application affects a matter of exclusively statewide concern. In my view, the majority analysis subtly misapplies our precedent in this area in a *164way that radically alters the relationship between home rule cities and the state, by virtually eliminating the area of mixed concern, in which both city and state had previously been permitted to legislate. Because I believe our well-established precedent requires not only that Northglenn’s ordinance be considered the regulation of a matter of mixed state and local concern, but also that it be found to be consistent with state law, I would uphold the validity of the ordinance and reverse the district court.

I.

There appears to be no dispute that the authority of home rule cities to legislate in specific areas, and the determination whether city or state legislation will predominate in the event of conflict, depend upon the nature of the matters being regulated. While the enactments of home rule cities are authorized and predominate over conflicting state statutes in matters of exclusively local concern, home rule cities have no authority to legislate in matter's of exclusively statewide concern unless expressly granted by constitution or statute. City of Commerce City v. State, 40 P.3d 1273, 1279 (Colo.2002); Town of Telluride v. Lot Thirty-Four Venture, L.L.C., 3 P.3d 30, 37 (Colo.2000). Because local and statewide concerns are not mutually exclusive, we have also found it useful to categorize some matters as being of mixed local and statewide concern. City and County of Denver v. Qwest Corp., 18 P.3d 748, 754 (Colo.2001); City and County of Denver v. State, 788 P.2d 764, 767 (Colo.1990). The majority accepts the well-established proposition that home rule cities may legislate in matters of mixed local and statewide concern as long their enactments are consistent with state law. See Commerce City, 40 P.3d at 1279; Telluride, 3 P.3d at 37; Qwest, 18 P.3d at 754; Denver, 788 P.2d at 767. It is the majority’s understanding of our precedent governing the categorization of legislative concerns as either statewide, local, or mixed that I do not share.

A.

We have often noted that the nature of the particular concerns involved in legislation must be determined from the totality of the circumstances, and we have described various considerations pointing to statewide or local concerns. Telluride, 3 P.3d at 37. We have also readily acknowledged the legal/policy dimension of these categories and have held that we may characterize a matter “as local to express our conclusion that, in the context of our constitutional scheme, the local regulation must prevail,” notwithstanding “a relatively minor state interest in the matter,” or the state’s suggestion of a “plausible interest” in regulating the matter. Denver, 788 P.2d at 767. Nevertheless, the mere fact that the concerns of one or the other government are “considerable” does not preclude categorization of the matter as mixed. Tel-luride, 3 P.3d at 37. Until today, we have never held that significant local and state interests, identified by considering the totality of the circumstances, should be balanced against each other to determine which is the weightier, with the result that the more weighty concern governs categorization. To do so would definitionally limit applicability of the third category of mixed concerns to matters involving equal state and local concerns and would abandon our prior holdings allowing both governments to legislate where both have appropriate concerns.

Allowing both governments to legislate with regard to matters of mixed concern is not a compromise for situations in which it cannot be said which concern is greater; it is a recognition that some matters legitimately concern both local and state governments and both must be permitted to legislate, as long as their enactments do not conflict. This is especially appropriate where a city ordinance does not facially interfere with a state regulatory scheme but its operational effect impacts a matter of statewide concern. On its face, Northglenn’s ordinance regulates the cohabitation of sex offenders who are unrelated by blood or marriage, not juveniles or foster families, but as a practical matter its enforcement impacts the state’s ability to create foster families with multiple registered sex offenders. To the extent that both zoning and public safety are legitimate matters of local concern, and the regulation and protection of juveniles, including the designa*165tion of foster families, are matters of statewide concern, regulating the number of unrelated sex offenders permitted to live in a single, residential home is a classic example of mixed statewide and local concern. Whether Northglenn’s ordinance is a valid exercise of the city’s legislative authority should therefore turn on its consistency with state law.

The majority’s ultimate conclusion that the ordinance regulates a matter of exclusively statewide rather than mixed concern, despite acknowledging that “both local and state interests are implicated,” maj. op. at 160; see also id. at 31, is at odds with the very authority upon which it relies. See, e.g., Commerce City, 40 P.3d at 1284-85 (categorizing regulation of automated vehicle identification system as matter of mixed concern where analysis showed both cities and state have important interests at stake); Telluride, 3 P.3d at 39 (categorizing rent control as matter of mixed concern given legitimacy of both state and city interests); Nat’l Adver. Co. v. Dep’t of Highways, 751 P.2d 632, 638 (Colo.1988) (categorizing control of outdoor advertising devices within home rule city along roads of state highway system as matter of mixed concern); cf. Denver, 788 P.2d at 767, 772 (categorizing residency of municipal employees as matter of local concern because no substantial state interest could be claimed); Century Elec. Service & Repair, Inc. v. Stone, 193 Colo. 181, 183, 564 P.2d 953, 954 (1977) (invalidating Denver requirement for licensing of electricians because of conflict with state statute). Most particularly, while the state’s enactments and its intent to occupy an entire field of regulatory law may create a conflict, and in that way preempt local legislation, the General Assembly cannot make a matter of local concern any less so by imposing its own regulatory scheme, even where it has legitimate statewide concerns. See Bd. of County Comm’rs v. Bainbridge, Inc. 929 P.2d 691, 710-11 (Colo.1996) (noting that preemption applies when statutory language expresses intent to prohibit exercise of local government authority in matters of shared state and local interest or may be inferred if the state statute impliedly evinces a legislative intent to completely occupy a given field by reason of a dominant state interest); see also Dempsey v. City and County of Denver, 649 P.2d 726, 727 (Colo.App.1982),(finding “conflict” with ordinance limiting social service employee salaries where state social services system evinced intent to preempt entire field). By contrast with the conclusion actually reached by the majority, I believe that its own analysis leads inexorably to the conclusion that Northglenn’s ordinance regulates a matter of mixed concern, and much of the majority’s analysis, in my view, actually addresses the question whether the ordinance and state statutes are consistent and may coexist rather than disputing the mixed nature of the concerns involved.

B.

We have indicated that in matters of mixed local and statewide concern, ordinances and state statutes may coexist as long as they are harmonious, see Telluride, 3 P.3d at 37, consistent, see Qwest, 18 P.3d at 754, or not in conflict, see National Adver., 751 P.2d at 638. We have also said_ that a conflict between state and local legislation exists when a local ordinance authorizes what state legislation forbids, or forbids what state legislation authorizes. E.g., Denver & Rio Grande W. R.R. Co. v. City and County of Denver, 673 P.2d 354, 361 n. 11 (Colo.1983); Ray v. City & County of Denver, 109 Colo. 74, 121 P.2d 886 (1942). With regard to preemption generally, we have delineated three basic ways in which an ordinance or regulation can be preempted by state statute. An ordinance will be considered completely preempted by express statutory language preempting all local authority over the subject matter or by an implicit legislative intent to completely occupy a given field by reason of a dominant state interest, and an ordinance may be partially preempted where its operational effect would conflict with the application of the state statute. Bd. of County Comm’rs v. Bowen/Edwards Assoc., Inc., 830 P.2d 1045, 1056-57 (Colo.1992).

There appears to be no suggestion by the parties (or the majority opinion) that state statutes contain any provision expressly preempting, or for that matter expressly conflicting with, Northglenn’s ordinance. As an *166element of its analysis finding this to be a matter of exclusively statewide concern, however, the majority finds an implied intent of the General Assembly to occupy the entire field, which it describes as “the regulation of adjudicated delinquent children living in foster care homes.” maj. op. at 162-163. Both the majority’s extreme narrowing of the “field” of concern and its invalidation of the ordinance only to the extent that it impacts “adjudicated delinquent children in foster care homes,” maj. op. at 156, seem more analytically consistent with disapproval of a particular operational effect of the ordinance than finding a legislative intent to occupy an entire field of regulation. Furthermore, if taken at face value, the majority’s conclusion that Northglenn’s ordinance regulates an area implicitly preempted by the General Assembly would seemingly end the matter, rendering superfluous its analysis of statewide concern. In fact, however, the ordinance does not attempt to compete or interfere in any way with state regulation of adjudicated delinquent children living in foster care homes. It limits the number of unrelated sex offenders who may live in one residential dwelling and, for that reason and that reason alone, operationally affects the ability of state agents to place some children — those who have been adjudicated as sex offenders — in foster care homes that already include one registered sex offender.

We have previously made clear that the Children’s Code does not prohibit the prosecution of juveniles for violating municipal ordinances where the municipal ordinance scheme does not “authorize what the Children’s Code forbids, or forbid what the Children’s Code expressly authorizes.” R.E.N. v. City of Colorado Springs, 823 P.2d 1359, 1362 (Colo.1992); see also Wigent v. Shinsato, 43 Colo.App. 83, 601 P.2d 653 (1979), (finding jurisdiction in both juvenile and municipal courts for shoplifting); cf. City and County of Denver v. Dist. Court, 675 P.2d 312, 314 (Colo.1984). Northglenn’s ordinance clearly does not authorize something that the Children’s Code, or any other statute, forbids. Neither does it forbid what the Children’s Code expressly authorizes. In fact, it can be said to forbid what state statutes authorize only in the sense that the General Assembly has delegated to agents of the Department of Social Services or licensed child placement agencies, within the limits allowed by department regulations, the authority to place children in the department’s custody in foster homes. Nowhere has it been suggested that state statutes, or even Social Service regulations, expressly treat the question of multiple registered sex offenders in a single residential dwelling or establish criteria for placement with which the ordinance directly conflicts.

Rather than find that a general grant of discretion to a state agent preempts otherwise valid enactments of home rule cities whenever they, in some way or under some set of circumstances, limit the exercise of that discretion, I think it more reasonable to hold that a general grant of discretion is implicitly limited by otherwise valid law— whether that law is local or statewide. Any other conclusion would be intolerable. Surely it would be unacceptable in the absence of an express delegation of authority to permit even an authorized child placement agency to place a child in violation of health or building code requirements or in areas zoned for other than residential dwellings. In the absence of either an express delegation to do so or a showing of necessity in the fulfillment of a statutory mandate, I consider it unjustified to presume a legislative intent to permit the violation of local law by state agents.

Nothing in our jurisprudence governing legislation in matters of mixed local and statewide concerns unduly limits the General Assembly in overseeing statewide interests. If ordinances like Northglenn’s actually have deleterious effects on the placement of registered juvenile sex offenders, the state legislature is in the best position to examine the various local and statewide concerns, evaluate the relevant policy considerations, and if merited, preempt local action. Local action in the interest of public safety, however, should not in my opinion be preempted by the unguided choice of a state agent in a particular case.

II.

Because I do not believe Northglenn lacked the power to legislate as it did or that *167its ordinance is preempted by inconsistent state statutes, I would reach the grounds relied upon by the district court and reject both of them.

In short, I think it clear that the district court confused the question whether Ibarra had a liberty interest in the maintenance of her foster family for purposes of procedural due process, with the question whether that interest (if it existed) amounted to a fundamental right for purposes of substantive due process. See Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977) (finding no protected liberty interest by foster parents entitling them to procedural due process at all where the possibility of reunification exists); see also People in the Interest of A.W.R., 17 P.3d 192 (Colo.App.2000),(holding that no expectation of continued foster placement can arise'until goal of reunification has been abandoned). A statutorily created “foster family,” which is subject to dissolution at the discretion of the Department of Social Services, clearly cannot rise to the level of a fundamental constitutional right, the deprivation of which would require strict scrutiny by the -courts and justification by a compelling state interest, and the city’s declaration of public safety concerns clearly amount to a rational basis for its legislation.

Similarly, the district court’s finding that the ordinance violated the Fair Housing Act, 42 U.S.C. § 3601, by denying housing “because of ... familial status” lacks any support whatsoever. Facially, the ordinance does not discriminate on the basis of familial status but rather on the basis of registration as a sex offender, and there is no allegation, much less any attempt to prove, that despite being neutral on its face, the ordinance was directed against or had a disproportionately discriminatory effect upon families. Cf. Village of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) (facially neutral zoning ordinance did not violate equal protection in absence of showing that it was motivated by intent to discriminate on basis of race).

III.

Because the ordinance is supported by legitimate local concerns, does not violate constitutional guarantees of substantive due process of law, and conflicts with neither federal nor state law, I would reverse the judgment of the district court. Because the state also has a legitimate concern for the placement of delinquent children that is potentially impacted by the ordinance, the General Assembly may act to preempt that effect of the ordinance if it finds that action to be appropriate.

I therefore respectfully dissent.

I am authorized to say that Justice KOURLIS and Justice RICE join in this dissent.