Colorado Preemption Law: The Evolving Meaning of 'Conflict', 0419 COBJ, Vol. 48, No. 4 Pg. 38

Position:Vol. 48, 4 [Page 38]

48 Colo.Law. 38

Colorado Preemption Law: The Evolving Meaning of "Conflict"

Vol. 48, No. 4 [Page 38]

Colorado Lawyer

April, 2019



This article discusses how the meaning of "Conflict" has evolved in case law on preemption.

Some areas of law resemble a Mondrian painting, unceasingly transforming chaos into orthogonal order, however complex and energetic. Preemption law is not like that. Preemption law is Picasso-like: simple-looking at first blush, but deeply complex, often attempting to reconcile several incompatible perspectives into an interlocking but uncooperative whole. Colorado law follows this national trend, coopting federal concepts and adding its own at times.

This article seeks to put into perspective revisions the Colorado Supreme Court made, in a series of 2016 decisions, to the doctrine governing when state laws preempt—that is, supersede—local laws. The article focuses specifically on a species of preemption variously called operational conflict, obstacle preemption, or conflict preemption. The changes paint yet more colors and figures onto an already crowded and confounding canvas.

Preemption Principles

The impact of home rule on preemption analysis, while not the focus of this article, is an unavoidable threshold issue. In matters of "solely" or "purely" local concern, where the interest of the state as a whole is relatively minor or nonexistent, a home rule city's laws will trump state statutes, regardless of the General Assembly's intent.1 But for all other issues on which a home rule city legislates—ones of predominantly state concern, or of mixed state and local concern—as well as all legislation by a county or statutory municipality, preemption questions come down to the courts' interpretation of the state statute as it relates to a local ordinance.

One surefire way for a statute to exhibit a legislative intent to preempt a local law is to expressly state that no local government may pass any ordinance within a particular substantive scope. This is express preemption, and a court' s t ask in applying this type of statutory clause is straightforward: to overturn a local enactment if it falls within the prohibited sphere.2

Beyond that, the courts have recognized two methods to invalidate ordinances as preempted: implied preemption and conflict preemption. Despite originating from distinct concepts, the two bleed into each other. Implied preemption arises when a state statute so thoroughly regulates a particular subject matter that it implicitly leaves no room for local regulation. It occupies the field and local regulations that attempt to enter the field are invalid.3

Conflict preemption, on the other hand, invalidates a specific local regulation where it conflicts directly with a state regulation, such that the two regulations are incompatible.4The meaning of conflict preemption is neatly encapsulated within the Latin etymology of "Conflict": con + fligere, to strike together. The type of regulatory incongruity that gives rise to this preemption is therefore a "head on collision," not merely a close call or a tight squeeze.5

Tests for Conflict Preemption

If express and implied preemption do not apply, local ordinances that regulate subject matter similar to a state statute, but do not directly collide with it, are valid. And Colorado courts have held that a local law may be valid even if it regulates the "same subject" as state law.6 The similarity of the subjects of the state and local laws does not give rise to preemption.

As to what does raise a conflict, courts have devised several tests. First and most obviously, a local ordinance conflicts with state law if it is impossible to comply with both. This is the impossibility test.7

The second test is the forbids/authorizes test, which Colorado borrowed from Ohio in 1942. Under this test, conflict exists where a local ordinance forbids what a state statute authorizes, or authorizes what statute forbids.[8] This test does not feature in federal jurisprudence, but has become commonplace among the states. Note that the test is not that a locality cannot forbid what the state merely "allows." That formulation would be misleading, because "allow" has two relevant meanings: to tolerate, and to affirmatively approve.9 Here the courts mean that a local ordinance cannot forbid what the state has "expressly," "explicitly," or "affirmative[ly]" authorized.10 The distinctions critical, because state law can be said to tolerate anything that it does not forbid. Preemption law does not prevent local governments from restricting or prohibiting anything that state l aw merely tolerates. The primary motivation for any local regulation is that the state does not regulate conduct in the locality's desired manner; in other words, the state tolerates the conduct. So replacing "authorize" with "allow" or "permit" (which carries the same ambiguity as "allow") in the formulation of the test would subtly expand preemption drastically and thus minimize the potential for any local regulation to survive.

Third, an ordinance conflicts "in operation" with a statute if it materially impedes or destroys the state's interest. This test boasts the oldest pedigree; as early as 1824,11 the U.S. Supreme Court proclaimed that state laws are preempted if they frustrate the purposes of Congress.12 The operational conflict test can be read as an as-applied counterpart to the more facial-sounding forbids/authorizes test. At first, the Colorado Supreme Court applied it that way, requiring a fully developed evidentiary record to prove that the local law in fact impeded the operation of the state law.13This is how the Court understood the test as recently as January 2016.

It is at this granularity, however, that the preemption principles begin to pixelate into something more cubist, as discernable from a triad of 2016 Colorado Supreme Court cases.

Ryals v. City of Englewood

Ryals was a convicted and registered sex offender who purchased a home in Englewood.14 When he attempted to register his residence with the local police, he was instead cited for violating a local ordinance.15 The ordinance prohibited certain registered sex offenders and sexually violent predators from residing within 2,000 feet of a school, park, or playground or within 1,000 feet of a licensed day care center, recreation center, or public swimming pool.16 Ryals sued in federal court, arguing the local ordinance was preempted by the Colorado Sex Offender Registration Act (CSORA), among other claims.17

The federal district court held a four-day trial and found that the ordinance rendered 99% of Englewood off limits to sex offender residency.18 The court found this to be a de facto ban on residency of these sex offenders within Englewood.19 Comparing this effect to the provisions of CSORA, and applying Colorado state preemption law, the court held that the operational effect of the ordinance interfered with the state's interest in uniform reintegration of sex offenders.20 Englewood appealed, and the Tenth Circuit certified the question to the Colorado Supreme Court.21

The Supreme Court considered three features of state law in determining its preemptive effect. First, the state statute assigns the Sex Offender Management Board (SOMB) the responsibility to "determine the best practices for living arrangements for and the location of adult sex offenders within the community."22 The SOMB requires a sex offender who seeks to change residence to "receive prior approval by the supervising officer."23The SOMB has also advised that restrictions like Englewood's are "counterproductive to public safety."24

Second, CSORA requires sex offenders to register their residency with local law enforcement, which approves and verifies the addresses. CSORA provides:

A local law enforcement agency shall accept the registration of a person who lacks a fixed residence; except that the law enforcement agency is not required to accept the person's registration if it includes a residence or location that would violate state law or local ordinance.[25]

Third, the Colorado Sex Offender Lifetime Supervision Act delegates to the parole division the task of "parole supervision in... housing," effectively requiring the parole officer's approval for the sex offender's chosen residence.26

Because Englewood is a home rule city, the Court began with the home rule analysis, finding that sex offender residency is a matter of mixed state and local concern. The state had a "strong" need for uniformity of regulation in this area, and the legislature had tasked SOMB with "comprehensively" managing sex offenders.27 The Court repeatedly returned, however, to CSORA's exception allowing local law...

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