Home Rule in Colorado: Evolution or Devolution

• Publication year: 2004
• Pages: 61

33 Colo.Law. 61 Colorado Lawyer 2004.

2004, January, Pg. 61. Home Rule in Colorado: Evolution or Devolution

---

61

Vol. 33, No. 1, Pg. 61

The Colorado Lawyer
January 2004
Vol. 33, No. 1 [Page 61]

Specialty Law Columns
Government and Administrative Law News
Home Rule in Colorado: Evolution or Devolution
by John E. Hayes, Kristy M. Hartl

This column provides information to attorneys dealing with various state and federal administrative agencies, as well as attorneys representing public or private clients in the areas of municipal, county, and school or special district law

Column Editors

Carolynne C. White of the Colorado Municipal League - (303) 831-6411, cwhite@cml.org; Brad Bailey, Assistant City Attorney, City of Littleton - (303) 795-3725 bbailey@littletongov.org; Tiffanie Bleau, Denver, an attorney with Light, Harrington & Dawes, P.C. - (303) 298-1601,
tbleau@lhdlaw.com

John E. Hayes Kristy M. Hartl

About The Authors:

This month's article was written by John E. Hayes, Denver, a partner with Hayes, Phillips, Hoffmann & Carberry, P.C. - (303) 825-6444, jehayes@ hphclaw.com; and Kristy M. Hartl, Denver, an associate at Dufford & Brown PC - (303) 861-8013, khartl@ duffordbrown.com. The firm of Hayes, Phillips, Hoffmann & Carberry, P.C. represented the City of Northglenn in City of Northglenn v. Ibarra, discussed in this article.

Judicial and legislative attitudes regarding home-rule powers appear to be changing, with less deference being afforded local enactments and a greater tendency to declare matters to be of state or mixed state and local concern. This article reviews Colorado case law and legislative trends regarding home rule.

Article XX to the Colorado Constitution, which was enacted in 1902, specifies and delineates the powers possessed by home-rule cities and towns. For almost the first century of its existence, Article XX was regularly construed and applied in such a manner as to provide municipalities that had adopted home-rule charters plenary power to regulate within their boundaries matters of local concern. Those powers generally were protected by the courts and honored by the General Assembly.

Nonetheless, it appears that recent years have brought a significant change in attitude on the part of both the Colorado Supreme Court and the General Assembly relating to the extent and reach of municipal home rule. Although the judicial rules governing the interpretation of Article XX remain the same, those rules recently have been applied to uphold or determine regulations as matters of statewide concern or mixed state and local concern. Such interpretations negate or lessen the former reach and power of Article XX.

This article briefly reviews the history of home rule in Colorado,1 placing particular emphasis on home-rule cases decided since 2000 and legislation adopted by the General Assembly in the last decade. The article also articulates changes in attitude on the part of the Colorado Supreme Court and the Colorado General Assembly toward municipal home rule and examines reasons for such changes.

Overview of Colorado Home-Rule Doctrine

Article XX, entitled "Home Rule Cities and Towns," was added to the Colorado Constitution in 1902. In 1912, Colorado voters adopted § 6 as an amendment to Article XX (commonly known as the "Home Rule Amendment").2 Article XX, § 6 granted home-rule powers to municipalities operating under its provisions and abrogated Dillon's Rule, which had provided:

Municipal corporations owe their origin to, and derive their powers and rights wholly from, the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so may it destroy. If it may destroy, it may abridge and control.3

Matters of Local,
State, Or Mixed
Concern

The adoption of the home-rule provision of the Colorado Constitution altered the basic relationship between home-rule municipalities and the state by granting home-rule municipalities the same power over local affairs as that possessed by the legislature as to statewide matters.4 With the advent of municipal home rule, three broad categories of regulatory matters developed. These include matters of: (1) local concern; (2) statewide concern; and (3) mixed state and local concern.

In determining whether a municipal ordinance or charter supersedes state legislation, a court first must determine into which category the object of the regulation fits. For matters of statewide concern, the state legislature has supreme authority; home-rule municipalities have no power to act unless authorized by state statute or the constitution.

Regarding matters of local concern, both home-rule municipalities and the state may legislate. However, if a home-rule ordinance or charter conflicts with a state statute regulating a local matter, the home-rule provision supersedes the conflicting state provision.5 In matters of mixed state and local concern, both home-rule municipalities and the state legislature may adopt legislation that can coexist, as long as there is no conflict. In the event of a conflict,6 the state statute supersedes a conflicting provision of the home-rule charter or ordinance.7

According to the Colorado Supreme Court, "There is no litmus-like indicator for resolving whether a matter is of local, statewide, or mixed concern."8 Classifying a particular regulation as a matter of state, local, or mixed concern is a legal issue that requires a court to consider both facts and policy in making its determination.9

In addition, the three categories are not mutually exclusive. The Colorado Supreme Court has recognized that interests that are of local, state, or mixed concern often merge.10 For that reason, the courts have not developed a specific test to determine into which category a matter belongs. By its own admission, the Supreme Court classifies regulations on an ad hoc basis.11 Likewise, courts in Colorado must consider the relative interests of the state and home-rule municipalities in regulating the issue in a particular case.12

In assessing whether a regulatory matter is one of local, state, or mixed concern, the Colorado Supreme Court has stated that the General Assembly's declaration that an issue is a matter of statewide concern is relevant, but not determinative.13 Past legislative declarations are not binding on a court's decision.14 According to the Court, changing conditions may influence the analysis.15 Specifically, the court has stated that what constitutes a local versus state concern depends on the time, circumstances, technology, and economics.16

Four-Factor Analysis

Several general factors bear on...