concurring in part and dissenting in part.
T48 I agree with the majority that this case presents an issue of mixed state and local concern and therefore concur in that aspect of the majority opinion. I disagree, however, with the majority's analysis of and conclusion concerning preemption. Like the federal district court, I would decide this case under the rubric of operational conflict. Because the effect of local laws like Ordinance 34-banning all sex offenders from residing in entire home-rule cities-would materially impede the state's comprehensive regulatory scheme for sex offenders, and because section 16-22-108(l)(@)(I), CRS. (2015), does not sanction such laws, I would -hold that Ordinance 34 is preempted due to operational conflict and would answer the certified question in the affirmative. I therefore respectfully dissent from Part ILD of the majority opinion. |
*911I. Preemption by Operational Conflict
{49 We have recognized three forms of preemption in the context of assessing local law in relation to state law: express preemption, implied preemption, and: "operational preemption," see Colo. Mining Ass'n v. Bd. of Cty. Comm'rs, 199 P.3d 718, 724 (Colo.2009), - or "operational conflict," Bd. of Cty. Comm'rs v. Bowen/Edwards Assocs., 830 P.2d 1045, 1059 (Colo.1992). . "Operational conflict" is a term we use to describe the situation in which. state law preempts, local law because the local law's "operational effect, would conflict with the application of the state law]." Id. at 1056-57. Over time, we have inconsistently described the standard for identifying operational conflict; indeed, our prior preemption cases could be read as espousing multiple standards.
1 50 In my- view, operational eonfhc’c emsts where "the effectuation of a local interest would materially impede or destroy the state interest." Id. at 1059. Since destruction could not occur without material impediment, the crucial inquiry is whether effectuating the local interest would materially impede the state interest. This material impediment standard is broad enough to encompass all of the situations in which we have recognized that conflict can arise, including where "the home-rule city's ordinance authorizes what state statute forbids, or forbids what state statute authorizes." Webb v. City of Black Hawk, 2018 CO 9, ¶ 43, 295 P.3d 480, 492; see also maj. op. ¶ 41. In this sense, then, the majority's analytical framework is consistent with our operational conflict preemption precedent. |
¶51 Still, I cannot endorse the majority's application of that framework in this case. First, while I agree that legislative silence does not equal authorization, see. maj. op. 43, I rejeet the notion that the absence of statutory language explicitly sanctioning a specific action amounts to "silence" as to that action. While comparing the language of a local law . with that of state laws can expose the existence of conflict, such a comparison cannot, standing alone, prove an absence of conflict, Rather, in order to rule out preemption by operational conflict, we must consider how the laws will work in operation-i.e., how the "operational effect" of a local law might undermine a state statutory scheme.. Bowen/Edwards, 830 P.2d at 1057 (emphasis added).
152 Second, the majority is wrong to spurn the idea that "a potential conflict [is] sufficient for [a] state scheme to preempt [an] ordinance." See maj. op. " 45 (emphasis in original). Our preemption doctrine focuses on the validity of the local law at issue, asking whether the law is, or is not, preempted. A law cannot be preempted as to some challengers but not others; we do not wait for it to be preempted "as applied." Thus, in assessing preemption by operational conflict, we examine whether a local law's "operational effect would conflict" with a state statutory scheme. Bowen/Edwards, 830 P.2d at 1057 (emphasis added). We search for crossroads "where the effectuation of a local interest would materially impede or destroy the state interest." Id. at 1059 (emphasis added). We recognize that, while the law's ef-feet must be discernible, the conflict need not germinate and spread before we may employ our preemption doctrine to halt its growth.
[ 58 In sum, I believe our ultimate focus in assessing preemption by operational conflict centers on whether the local law will materially impede the state's interest concerning the regulated matter. This standard affords courts the latitude necessary to practically assess- whether the local and state laws at issue may coexist effectively. I turn now to the question of whether Ordinance 34 materially impedes, and therefore is preempted by, state law. R
IL. Ordinance 34 is Preempted ~___ by State Law
{54 The federal district court concluded that "the operational effect of ... Ordinance 84 impermissibly conflicts with the application and effectuation of the state interest in the uniform treatment, management, rehabilitation and reintegration of sex offenders during and after state supervision." Ryals v. City of Englewood, 962 F.Supp.2d 1236, 1249 (D.Colo.2013). -It also found that, "from an operational standpoint, [Ordinance 84] conflicts with the state's system of sentencing, parole, and probation, as well as with the state's system of registration." Id. at 1251 I agree.
*912I also believe the domino effect consideration flagged by the district court is cause for alarm and underscores the conflict attendant to ordinances like Einglewood's.
156 The district court found that Ordinance 84 effectively prohibits residency in Englewood for all felony sex offenders and many misdemeanor sex offenders, so long as they are required to register.1 Id. at 1242, 1251. Ninety-nine percent of Englewood is off-limits for these offenders, and this figure does not account for whether any of the residential. parcels within the remaining one percent of the city are available for sale or rent. Id. at 1241-422 No person in the ordinance's history "has ever first attempted to register at a restricted address. ... and then been able to find [a] residence in the City that does not violate Ordinance 84"; overwhelmingly, they have relocated to other. cities. Id. at 1242, Police officers who enforce Ordinance 84 tell sex offenders that they cannot live in Englewood regardless of where they seek to reside. Id. In effect then, Ordinance 834 is a total ban on sex offender residency.
[ 57 While Englewood understandably may think the best option for its citizens in dealing with sex offenders is simply to banish them, the State of Colorado does not have that option. In the district court's words, "Most [sex offenders] will at some point return to the community, and there must be a place for them to live." Id. at 1250. The state therefore has established an elaborate framework of laws to address that inevitable return. I turn there now to examine whether Englewood's de facto ban materially impedes the state's scheme.
A. Ordinance 34 Materially Impedes the State's Sex Offender Scheme'
158 Colorado law promotes public safety through an extremely comprehensive sex offender management system. Decades in the making, this statutory and regulatory system concentrates on simultaneously monitoring, rehabilitating, and reintegrating sex offenders. See, ag, § 16-11.7-101, C.R.S. (2015). At the helm are the Sex Offender Management Board ("SOMB") and state parole and probation authorities, which carefully virtually every aspect of a sex offender's life, from the initial decision whether to release the offender into the community to the terms and conditions dictating the offender's existence once there.
[ 59 Ordinance 34 hinders the state's comprehensive system in at least three crucial ways: (1) it causes some sex offenders to evade the ban by registering falsely or foregoing registration altogether, thereby causing such offenders to drop off the radar that the state uses to enhance the safety of all Colorado citizens; (2) it impairs the state's efforts to maximize public safety through individualized case management; and (8) it lays the groundwork for a "not-in-my-backyard" domino effect that will only cause these statewide public safety concerns to fester, To more plainly Mustrate Ordinance 34's interference with state law, I address and expand on each of these points in turn.
€60 First, Ordinance 34 undermines the state's ability to carefully oversee sex offenders through the Colorado Sex Offender Registration Act ("CSORA"), §§ 16-22-101 to - 115, The state uses this centralized-registration system to track offenders -in order to "protect the community and ... aid law enforcement officials in investigating future sex crimes." See People v. Carbajal, 2012 COA 107, ¶ 37, 312 P.3d 1183, 1189. Ordinance 34 impedes registration by causing some sex offenders to register falsely or not register at all. Ryals 962 F.Supp.2d at 1251. Natural*913ly, as a SOMB official testified, losing track of offenders frustrates not only the registration system but also the state's overall sex offender management scheme. The majority ignores this evidence,
€ 61 Second, Ordinance 34 undermines the state's ability to assure the successful rehabilitation and reintegration of sex offenders into society in a way that best protects public3 In order to improve the likelihood of successful reintegration, sex offender release must be discretionary, evaluated on a case-by-case basis, and closely linked to supervision and treatment conditions specific to each offender, - Ree §§ 18-1.3-1005 to -1009, C.R.S. (2015); see also § 17-22.5-404(1)(e), C.RS. (2015) (recognizing connection between "offender's likelihood of success" and "aligning the intensity and type of ... supervision, conditions of release, and services with assessed risk and need level"). Thus, the legislature created "intensive supervision" parole and probation programs for sex offenders that "shall be designed to minimize the risk to the public to the greatest extent possible," §§ 18-1.3-1005(2), -1007(2), and required that release into either program be conditioned on a determination that the offender "would not pose an undue threat to the community," §§ 18-1.8-1006(1)(a), - 1008(1.5). The legislature also directed the SOMB to promulgate standards for evaluating sex offenders on an individual basis and determining offender-specific conditions of release necessary to manage, monitor, and treat each ' offender, - See § 16-11.7-108(4)(a)-(b); § 17-22.5-403(8)(b);, - §§ 18-1.3-204(1)(a), -1009(1)(a). And because the goals of rehabilitation and reintegration "depend on the creation and maintenance of a stable environment and support system, close to family ties, employment, and treatment options," Ryals, 962 F.Supp.2d at 1250 (quoting Fross v. Cty. of Allegheny, 612 F.Supp.2d 651, 658 (W.D.Pa.2009)), Colorado statutes and regulations 'reflect the importance of placing each sex offender in a Hving situation designed to further that offender's chance of success.
I 62 Before an offender is released, his or her treatment provider must make recommendations to the state parole office "regarding ongoing treatment needs, living ar-ranmngements and conditions of supervision related to the offender's rehabilitative needs." See Colo. Sex Offender Mgmt. Bd., Standards and Guidelines for the Assessment, Evaluation, Treatment and Behavioral Monitoring of Adult Sex Offenders § 3.650(b) (2011) [hereinafter Standards and Guidelines] (emphasis added). If parole is granted, the parole 'office is charged with providing "supervision and assistance in securing employment, housing, and such other services as may affect the successful reintegration of the sex offender into the community ...s." § 17-22,5-408(8)(b) - (emphasis added). The scheme provides that success: ful reintegration can be facilitated by the support systems available in Shared Living Arrangements, see Standards and Guidelines §§ 8.170, 3.171; see also § 16-11.7-108(4)(b) ("Treatment options may include . shared living arrangements. ..."), or in living with an Approved Community Support Person, see Standards and Guidelines § 5.7104 4
*914T63 The scheme further contemplates a direct state role in selecting and monitoring sex offenders' residences. In order for an offender to show that he or she "would not pose an undue threat to the: community" under section 18-1.3-1006(1)(a), the offender must submit for approval a Parole Plan which demonstrates, among other things, that the offender's "home living situation is free from former and potential victims" and that "[tlhe appropriate level of supervision and containment is available where the offender plans to live." Colo, Sex Offender Mgmt. Bd., Lifetime Supervision Criteria § LS 1.010(I) (1999) [hereinafter Supervision Criteria] (promulgated pursuant to § 18-1.8-1009). Offenders must receive prior approval from their supervising officer before changing residences,. Standards and Guidelines § 5.620(K), and are not allowed to reside with children under age eighteen, id. § 5.620(B). If an offender is assigned to a Shared Living Arrangement, its location must be approved in advance by state officers. See id. § 3.170. . In addition, state courts can require as a condition of probation that an offender reside in a particular facility or remain within the jurisdiction of the court. § 18-1.83-204(2)(a)(III), (XT). And in order for an offender on probation to receive reduced, supervision or discharge, the offender must "maintain a stable and safe residence," which is a residence that "limits the offender's contact with victims, potential victims, and minors." | Supervision Criteria $ LS 3.010(D) (promulgated pursuant to § 18-1.3-1009).
64 In sum, state law places in the hands of state officials the authority to select or approve a sex offender's residence. Ordi-nange'Sé; overrides that authority by legislatively disapproving any residence located in Englewood. To me, approval by the state, plus disapproval by a locality, equals conflict. Thus, the "operational effect" of Ordinance 84-banning . sex offender. residency in an entire city-"would conflict" with state law by "materially imped{ing]" the state's interest in sex offender management, rehabilitation, and reintegration. - See Bowen/Edwards, 830 P.2d at 1056-57, 1059. By closing off an entire city without considering the nature of the offender in any way, bans like Ordinance 34 fail to respect the state's individualized approach to sex offender management and materially impede the state scheme for offenders whose best chances for successful reintegration depend on residing in a city with a ban -in place. Such bans force the state to deviate from individualized assessments that would otherwise lead to an offender's placement in a banned locality.
165 Finally, I share the federal district court's apprehension about the domino effect that likely will follow from this court's approval of local residency bans. The majority seeks to downplay this concern by noting that only six Colorado cities have implemented residency bans. See maj. op. 129. What the majority fails to acknowledge, however, is that such bans have never, until now, received a Colorado court's stamp of legal approval. Now able to hold up the majority's opinion as a shield to costly legal challenges, other home-rule cities will almost certamly enact residency bans of their own,
T 66 The likelihood of this result, and the severity of its impact on the state's sex offender scheme, is magnified by the fact that all six cities that currently restrict sex offender residency are located within or very near the greater Denver metropolitan area, which is home to a majority of the state's 5 No longer hindered by the prospect of viable lawsuits, the remaining metro-area cities now have every incentive to pass residency bans in order to prevent sex offenders from moving into their communities. Indeed, the majority acknowledges that "Itlhis is precisely why Englewood passed Ordinance 34 in the 'first place-as a response to the passage of a similar restriction *915in Greenwood Village." Id. at ¶ 28. And an Englewood police officer testified at the trial below that Denver already has complained because Ordinance 34 causes sex offenders to move to Denver after Englewood rebuffs them.
167 Clearly, the state's sex offender scheme would be materially impeded if all cities enacted bans mirroring Ordinance 34. If six is insufficient, then I wonder, where would the majority draw the line? And wherever that line falls, would the majority find preempted only those bans enacted after the acceptable quota is filled? What if only four more cities enacted bans, but those four were Denver, Colorado Springs, Aurora, and Fort Collins-the four most populous cities in the state? And ifit's assumed that there is a line beyond which the state's sex offender scheme would be materially impeded, how can Englewood's ban not be preempted while the final city's ban would be? Our preemption doctrine should not condone such differentiation among coequal parts; yet, the majority's decision sets the stage for exactly that.
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1 68 These many considerations lead me to conclude that Ordinance 34 materially impedes, and therefore operationally conflicts with, the state's sex offender scheme. Perhaps the conspicuousness of this clash helps explain why the majority seeks refuge in section 16-22-108(1)(a)(I) of the CSORA. That provision, however, cannot bear the weight of the interpretation the majority places on it.
T 69 I turn now to the reasons why.
B. Section 16-22-108(1)(a)(I) Does Not Embrace Laws like Ordinance 34
70 Unlike the majority, I do not believe the legislature would impose on localities the obligation to register local sex offenders' residences while simultaneously intending that section 16-22-108(1)(a)(I) would allow such localities to completely avoid that obligation by enacting sex offender residency bans. Not only is such an interpretation debatable under the plain language of the provision, it is contradicted by the provision's legislative history and defies common sense.
T 71 For one, I find the provision ambiguous with respect to local law enforcement agencies' authority to reject registrants. The majority references only the latter clause of the relevant statutory sentence; but the full sentence states: ‘
A local law enforcement agency shall accept the registration-of a person who lacks 'a fixed residence; except that the law enforcement ageney is not required to accept the person's registration if it includes a residence or location that would violate state law or local ordinance. -
§ 16-22-108(1)(a)(I). Read as a whole, it is unclear whether the exception for contrary state or local law applies to any registrant, as the word "residence" in the second clause suggests, or only those registrants who lack a fixed residence, as the sentence's' overall construction suggests. Because I find this prov1s16n ambiguous, see State v. Nieto, 993 P.2d 493, 500-01 (Colo.2000) (“[W]here the words chosen by the legislature are ... capable of two or more construcmons leadmg to different results the statute is ambiguous."), I turn to the legislative hlstory and cons1der the entire statutory scheme in order to ascertain the General Assembly's intent, id.
172 This ambiguous provision was added to section 16-22-108 in 2012 by House Bill 12-1346. Ch. 220, see. 4, § 16-22+-108, 2012 Colo. Sess. Laws 817, 942. The legislature's sole purpose in enacting H.B. 12-1346 was to address the problem that had arisen from certain localities' decisions not to register homeless or transient sex offenders. Seq, 6.9. Hearings on H.B. 12-1346 before the H. Judiciary Comm., 68th Gen. Assemb., 2d Sess. (Apr, 24, 2012) [hereinafter House Hearings]. Because the localities had justified their decisions based on the fact that the state's sex offender laws then required registration only where an offender "resides," id.; see also § 16-22-108(1)(a)(I), C.R.S. (2011), H.B. 12-1346 amended those laws to expressly require registration of offenders who "lack a fixed residence," see Ch. 220, sees. 1-7, §§ 16-22-102 to -109, § 18-8-412.6, § 16-11-102, 2012 Colo. Sess. Laws 817, 940-46.
*9161783 Nothing in the legislative history explains, or even references, the exception in the sentence added to section 16-22-108(1)(a)(I). Adding an exception to local police's obligation to register offenders with fixed residences not only would have been extraneous to the purpose of H.B. 12-1846, it would have been counterproductive. After all, the bill's purpose was to broaden the seope of localities' registration obligations. In light of this purpose, had the legislature intended for H.B. 12-1846 to create a new exception to localities' obligation to register fixed-residence offenders, it is difficult to believe the bill would have passed through both the House and Senate without any mention of that fact, See House Hearings; Hearings on H.B. 12-1846 before the S8. Judiciary Comm., 68th Gen. Assemb., 2d Sess. (May 4, 2012).
T 74 And even if the legislature did intend to create such an exception, I see nothing to suggest that it intended to accommodate decisions by localities to shut out sex offenders entirely. CSORA sets forth a top-down system of requirements and protocols to establish a centralized, accessible, and effective registration program and ensure that sex offenders are monitored in a coordinated manner, It tasks local law enforcement agencies with numerous information-sharing, notification, and verification duties and requires that such agencies report to state-level organizations,. Seq eg., §§ 16-22-106(8); -107(8)-(4); -109(1), (8)-(8.5), (5); - 110(4). It makes little sense that the legislature would enlist local police as a cog in this statewide system while at the same time contemplating that localities could unilaterally remove themselves from the system by passing self-exclusionary ordinances.
"I 75 For these reasons, I do not believe the General Assembly intended to embrace local bans on sex offender residency when it enacted the current language in section 16-22, 108(1)(a)(I). I therefore reject the majority's repeated resort to that provision as evidence that state law contemplates, and even clears the way for, laws like Ordinance 34.
III, Conclusion
T 76 The sum of these considerations leads me to conclude that Ordinance 34, and local sex offender residency bans in general, materially impede, and therefore operationally conflict with, the state's sex offender scheme. I therefore would find Ordinance 34 preempted and would answer the certified question in the affirmative. Accordingly, I respectfully dissent from Part IID of the majority opinion.
I am authorized to state that JUSTICE GABRIEL joins in this concurrence in part and dissent in part.
. All sex offenders who must register may be, and some are, required to do so for the remainder of their lives. See § 16-22-113(1), CRS. (2015) (allowing sex offenders to petition the court for discontinuance of the registration requirement after a prescribed time period); § 16~ 22-113(3) (listing sex offenders who are never eligible for discontinuance of the registration requirement).
. An Englewood Police Department handout warns that, if offenders attempt to inquire about these parcels' availability with their current occupants, the offenders may be contacted by police and charged with trespassing. Ryals, 962 F.Supp.2d at 1242.
. Whether, and how, offenders should be reintegrated is not at issue. The legislature long ago determined that "keeping all sex offenders in lifetime incarceration imposes an unacceptably high cost in both state dollars and loss of human potential," and that "some sex offenders respond well to treatment and can function as safe, responsible, and contributing members of society, so long as they receive treatment and supervision." § 18-1.3-1001, C.R.S. (2015). It therefore concluded that sex offenders, like other offenders, should be released on parole or probation when appropriate. See §§ 18-1.3-1006, ~1008 (addressing parole and probation, respectively). The goal of parole and probation is to help rehabilitate offenders and ensure their successful reintegration into society by assisting with that transition. See, eg., § 18-1.3-204(1)(a) (stating that probation is designed "to ensure that the defendant will lead a law-abiding life and to assist the defendant in doing so"); § 17-22.5-102.5(1)(c), C.R.S, (2015) (stating that one purpose of parole is to "promote rehabilitation by encouraging the successful reintegration of convicted offenders into the community while recognizing the need for public safety").
, The definition of Approved Community Support Person states:
Approved Community Support Person provides positive support for change efforts and may accompany the offender in approved activities that do not involve minor children. Someone significant to the offender and/or a roommate *914who attends treatment with the offender, has a positive relationship with the supervising officer and treatment provider, and is well versed in and supportive of the offender's supervision and treatment requirements. -
Standards. and Guldelmes § 5.710 (emphasis added). o ,
. The five cities other than Englewood are Castle Rock, Commerce City, Greeley, Greenwood Village, and Lone Tree, Ryals, 962 F.Supp.2d at 1247 n.6.