City and County of Denver v. State

• Decision Date: 12 March 1990
• Docket Number: No. 89SA60,89SA60
• Citation: 788 P.2d 764
• Parties: CITY AND COUNTY OF DENVER, a Colorado municipal corporation; Federico Pena, as Mayor and as a Citizen of the City and County of Denver; Robert F. Ledger, Jr., as City Manager and as a Citizen of the City of Durango; and the City of Durango, a Colorado municipal corporation, Plaintiffs-Appellees and Cross-Appellants, v. STATE of Colorado, a State of the United States of America, and Roy Romer, as Governor of the State of Colorado, Defendants-Appellants and Cross-Appellees, and Denver Police Protective Association, Colorado Professional Fire Fighters, Robert Clair, Deborah Clair, Gerald Meineke, Dorothy Meineke, Daniel Doyle, David Spialek and Linda Smith, Intervenors-Appellants and Cross-Appellees.
• Court: Colorado Supreme Court

Page 764

788 P.2d 764

CITY AND COUNTY OF DENVER, a Colorado municipal corporation Federico Pena, as Mayor and as a Citizen of the City and County of Denver; Robert F. Ledger, Jr., as City Manager and as a Citizen of the City of Durango; and the City of Durango, a Colorado municipal corporation Plaintiffs-Appellees and Cross-Appellants, v. STATE of Colorado, a State of the United States of America and Roy Romer, as Governor of the State of Colorado, Defendants-Appellants and Cross-Appellees and Denver Police Protective Association, Colorado Professional Fire Fighters, Robert Clair, Deborah Clair, Gerald Meineke, Dorothy Meineke, Daniel Doyle, David Spialek and Linda Smith, Intervenors-Appellants and Cross-Appellees.

No. 89SA60.

Supreme Court of Colorado, En Banc.

March 12, 1990.

Rehearing Denied April 2, 1990.

Stephen H. Kaplan, Denver City Atty., and George J. Cerrone, Jr. and Darlene M. Ebert, Asst. City Attys., Denver, for plaintiffs-appellees and cross-appellants.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., and Neil L. Tillquist, Asst. Atty. Gen., Denver, for defendants-appellants and cross-appellees.

Thomas B. Buescher, Brauer & Buescher, P.C., Denver, for intervenors-appellants and cross-appellees.

Gerald E. Dahl, Denver, for amicus curiae, Colorado Municipal League.

Justice MULLARKEY delivered the Opinion of the Court.

This is an appeal from a summary judgment and permanent injunction issued in the Denver District Court finding unconstitutional section 8-2-120, 3B C.R.S. (1989 Supp.), which forbids municipalities, with few exceptions, from adopting residency requirements for municipal employees. The court permanently enjoined the state from enforcing section 8-2-120 against the appellees, the City and County of Denver and the City of Durango, finding that it violated Article XX, Section 6(a) of the Colorado Constitution by improperly interfering with the power of home rule municipalities to determine conditions of employment for their employees. We affirm.

I.

On September 12, 1978, Denver voters approved an initiative amending the City Charter to require that all employees hired after July 1, 1979 become residents of the City and County of Denver as a condition of continued employment with the city. The amendment was codified at Denver Charter Section C5.12. ¹ Effective January 1, 1980, the City Council of the City of Durango enacted ² Rule 4.1 of its personnel rules which requires residency in certain instances as a condition of continued employment. ³

Since being adopted, the residency requirements have been enforced by both Denver and Durango. On April 11, 1988, Governor Roy Romer signed House Bill 1152, codified at section 8-2-120, 3B C.R.S. (1989 Supp.), which purports to preempt residency rules such as those of Denver, Durango and other cities and local governments in Colorado. ⁴

The cities of Denver and Durango filed their complaint on June 21, 1988 naming the State of Colorado and Governor Romer as defendants and seeking a preliminary injunction to enjoin the state from enforcing section 8-2-120. The Denver Police Protective Association, the Colorado Professional Fire Fighters, and several individual Denver employees successfully moved to intervene. After conducting a hearing on the matter, the district court granted a motion for a preliminary injunction finding that section 8-2-120 was unconstitutional as applied to the City and County of Denver and the City of Durango in that it conflicted with the authority of those home rule cities to adopt a residency requirement under Article XX, Section 6(a) of the Colorado Constitution.

In granting the preliminary injunction, the court found the residency requirement for municipal employees to be a matter of strictly local concern. After the parties filed cross-motions for summary judgment, the court granted the cities' motion and permanently enjoined the state from enforcing section 8-2-120 against the appellees. The court found that the Denver and Durango residency provisions were in direct conflict with section 8-2-120 and that because the residency requirements were a term and condition of employment under Article XX, Section 6(a), those requirements superseded section 8-2-120. The state took this direct appeal.

II.

Once again this court is required to delineate the limits of the power of a home rule municipality to adopt charter provisions and ordinances which are in conflict with state statutes. We often have stated the principles under which we resolve conflicts between provisions of state statutes and home rule charters or ordinances. A brief review is proper here. Article XX, Section 6, of the state constitution, adopted by the voters in 1912, granted "home rule" to municipalities opting to operate under its provisions and thereby altered the basic relationship of such municipalities to the state. ⁵ It abrogated "Dillon's Rule" which stated: 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.

City of Clinton v. Cedar Rapids & Mo. River R.R., 24 Iowa 455, 475 (1868); see generally Klemme, The Powers of Home Rule Cities in Colorado, 36 U.Colo.L.Rev. 321 (1964) (hereinafter Klemme ).

The effect of the amendment was to grant to home rule municipalities "every power theretofore possessed by the legislature to authorize municipalities to function in local and municipal affairs." Four-County Metro. Capital Improvement Dist. v. Board of County Comm'rs, 149 Colo. 284, 294, 369 P.2d 67, 72 (1962) (emphasis in original). Although the legislature continues to exercise supreme authority over matters of statewide concern, a home rule city is not inferior to the General Assembly with respect to local and municipal matters. Board of County Comm'rs v. City of Thornton, 629 P.2d 605 (Colo.1981). In determining the respective authority of the state legislature and home rule municipalities, we have recognized three broad categories of regulatory matters: (1) matters of local concern; (2) matters of statewide concern; and (3) matters of mixed state and local concern. City & County of Denver v. Board of County Comm'rs, 782 P.2d 753, 762 (Colo.1989); National Advertising Co. v. Department of Highways, 751 P.2d 632, 635 (Colo.1988); City & County of Denver v. Colorado River Water Conservation Dist., 696 P.2d 730, 740-741 (Colo.1985).

In matters of local concern, both home rule cities and the state may legislate. Conrad v. City of Thornton, 191 Colo. 444, 448, 553 P.2d 822, 825 (1976). However, when a home rule ordinance or charter provision and a state statute conflict with respect to a local matter, the home rule provision supersedes the conflicting state provision. City & County of Denver v. Colorado River Water Conservation Dist., 696 P.2d at 740; Colo. Const., Art. XX, Sec. 6. In matters of statewide concern, the General Assembly may adopt legislation and home rule municipalities are without power to act unless authorized by the constitution or by state statute. City & County of Denver v. Colorado River Water Conservation Dist., 696 P.2d at 740. Finally, we have held that in matters of mixed local and state concern, a charter or ordinance provision of a home rule municipality may coexist with a state statute as long as there is no conflict, but in the event of conflict the state statute supersedes the conflicting provision of the charter or ordinance. National Advertising, 751 P.2d at 635.

Although we have found it useful to employ the "local," "mixed," and "statewide" categories in resolving conflicts between local and state legislation, these legal categories should not be mistaken for mutually exclusive or factually perfect descriptions of the relevant interests of the state and local governments. Those affairs which are municipal, mixed or of statewide concern often imperceptibly merge. Fossett v. State, 34 Okl.Crim. 106, 107, 245 P. 668, 669 (1926). To state that a matter is of local concern is to draw a legal conclusion based on all the facts and circumstances presented by a case. In fact, there may exist a relatively minor state interest in the matter at issue but we characterize the matter as local to express our conclusion that, in the context of our constitutional scheme, the local regulation must prevail. Thus, even though the state may be able to suggest a plausible interest in regulating a matter to the exclusion of a home rule municipality, such an interest may be insufficient to characterize the matter as being even of "mixed" state and local concern.

We have not developed a particular test which could resolve in every case the issue of whether a particular matter is "local," "state," or "mixed." Instead, we have made these determinations on an ad hoc basis, taking into consideration the facts of each case. National Advertising, 751 P.2d at 635. We have considered the relative interests of the state and the home rule municipality in regulating the matter at issue in a particular case. See City & County of Denver v. Board of County Comm'rs, 782 P.2d 753 (court compares interest of Denver in construction of water projects outside its boundaries with the interest of the state and of the counties in which the water projects are located); National Advertising, 751 P.2d 632 (court compares city's interest in controlling outdoor advertising signs within its municipal borders, i.e., safety, recreation, aesthetics, with state's interest in continued eligibility for federal highway funds threatened by inconsistent local regulations); Denver & Rio Grande W. R.R. v. City & County of Denver, 673 P.2d 354 (Colo.1983) (court compares city's interest in construction of certain viaducts with the "paramount" interest of those living outside of Denver and holds that the...