by Richard Sweetman
Although the General Assembly exercises supreme authority over matters of statewide concern, a home rule municipality’s authority may be superior to that of the General Assembly with respect to local matters.
Section 6 of article XX of the Colorado constitution grants to each city or town of two thousand or more inhabitants the power to make, amend, add to, or replace a charter that serves as its organic law, extending to all its local and municipal matters. After certifying its charter and filing it with the secretary of state, the city or town becomes a “home rule” city or town and has the powers set forth in sections 1, 4, and 5 of article XX of the state constitution, as well as “all other powers necessary, requisite or proper for the government and administration of its local and municipal matters”.
This constitutional provision appears to give a good deal of power to a municipality that converts itself to being “home rule”. So, if a home rule municipality adopts an ordinance that conflicts with a state statute, which law will prevail? It depends on the subject of the ordinance.
In determining the relative authority between the General Assembly and home rule municipalities, the courts consider three broad categories of regulatory matters: (1) Matters of local concern; (2) Matters of statewide concern; and (3) Matters of mixed local and statewide concern. Trinen v. City and County of Denver, 53 P.3d 754, 758-59 (Colo. App. 2002); City of Commerce City v. State, 40 P.3d 1273, 1279-80 (Colo. 2002); City and County of Denver v. Qwest Corp., 18 P.3d 748, 754 (Colo. 2001).
In matters of local concern, a home rule municipality has plenary authority. Qwest Corp., 18 P.3d at 754. Although the state may legislate in areas of local concern (see City and County of Denver v. State, 788 P.2d at 767 (Colo. 1990)), home rule ordinances or regulations control in the event of a conflict with state legislation. Id.; City of Commerce City, 40 P.3d at 1279; City and County of Denver v. State, 788 P.2d at 767.
By contrast, the General Assembly has exclusive authority to legislate in areas of statewide concern. That is, the state legislature may adopt legislation, and home rule municipalities are without power to act unless authorized by the constitution or by state law. See Trinen, 53 P.3d at 758; Qwest Corp., 18 P.3d at 754; City and County of Denver v. State, 788 P.2d at 767.
If the matter is one of mixed local and statewide concern, home rule provisions and state statutes may coexist when the measures can be harmonized. In the event of a conflict, however, the state statute supercedes the home rule provision. Trinen, 53 P.3d at 758; Qwest Corp., 18 P.3d at 754; Town of Telluride v. Lot Thirty-Four Venture LLC, 3 P.3d 30, 37 (Colo. 2000); City and County of Denver v. State, 788 P.2d at 767.
Even when a home rule city has considerable local interests at stake, a particular issue may be characterized as one of mixed concern for purposes of determining a home rule municipality’s authority when sufficient state interests are also implicated. Town of Telluride, 3 P.3d at 37; but see J. Coats’ dissent in City of Northglenn v. Ibarra, 62 P.3d 151, 165 (Colo. 2003) (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).
The Colorado Supreme Court has repeatedly announced certain tests to determine whether a matter is of local, statewide, or mixed concern. These categories, however, are not mutually exclusive. They do not provide perfectly distinct descriptions of competing governmental interests. They often merge imperceptibly, City and County of Denver v. State, 788 P.2d at 767, thereby making the tests for identifying the category imprecise and easier to state than to apply. The tests include:
Totality of the Circumstances. To determine whether the state’s or a home rule municipality’s rules govern, the court considers the totality of the circumstances to reach a conclusion that a particular subject matter is one of local, statewide, or mixed concern. City of Commerce City, 40 P.3d at 1279-80; Town of Telluride, 3 P.3d at 37. This analysis involves consideration of both fact and policy, Qwest Corp., 18 P.3d at 37, directed toward weighing the respective state and local interests implicated by law. Town of Telluride, 3 P.3d at 37. The determination is ad hoc, taking into consideration the facts of each case. City and County of Denver v. State, 788 P.3d at 767-768.
Legislative Declarations. The General Assembly’s declaration that an issue is a matter of statewide or local concern is not conclusive but should be afforded deference in recognition of the legislature’s authority to declare public policy of the state in matters of statewide concern. Town of Telluride, 3 P.3d at 37 (citing City and County of Denver v. State, 788 P.2d at 768 n. 6 (noting that the General Assembly’s declaration is not binding)). It is not up to the courts to make or weigh policies. Id. at 38. Thus, when sufficient state interests are implicated, an issue that also implicates local interests is still a matter of mixed local and statewide concern. Id.
Key Factors. Finally, in determining whether a state interest is sufficient to justify home rule preemption, the court considers a variety of factors. These factors are intended to assist the court in measuring the importance of the state interests against the importance of the local interests in order to make an ad hoc decision as to which law should prevail. These factors include: (1) The need for statewide uniformity of regulation; (2) The impact of the measure on individuals living outside the municipality (“extraterritorial impact”); (3) Historical considerations concerning whether the subject matter is one traditionally governed by state or local government; (4) Whether the Colorado constitution specifically commits the particular matter to state or local regulation; and (5) Whether there is a need for governmental cooperation to facilitate the laws concerning the subject matter in question. City of Northglenn, 62 P.3d at 156; City of Commerce City, 40 P.3d at 1280; City and County of Denver v. Qwest Corp., 18 P.3d at 754-55; Town of Telluride, 3 P.3d at 37; City and County of Denver v. State, 788 P.2d at 768.