Fraternal Order of Police, Colorado Lodge No. 27 v. City and County of Denver

• Citation: 926 P.2d 582
• Decision Date: 12 November 1996
• Docket Number: No. 95SC698,95SC698
• Parties: FRATERNAL ORDER OF POLICE, COLORADO LODGE # 27, a Colorado Non-profit Corporation; Fraternal Order of Police, Colorado State Lodge, a Colorado Non-profit Corporation; and Larry Nead, Petitioners, v. CITY AND COUNTY OF DENVER, a Municipal Corporation; and Elizabeth H. McCANN, in Her Official Capacity as Manager of Safety for the City & County of Denver, Respondents.
• Court: Supreme Court of Colorado

Page 582

926 P.2d 582

FRATERNAL ORDER OF POLICE, COLORADO LODGE # 27, a Colorado Non-profit Corporation; Fraternal Order of Police, Colorado State Lodge, a Colorado Non-profit Corporation; and Larry Nead, Petitioners, v. CITY AND COUNTY OF DENVER, a Municipal Corporation; and Elizabeth H. McCANN, in Her Official Capacity as Manager of Safety for the City & County of Denver, Respondents.

No. 95SC698.

Supreme Court of Colorado En Banc.

Nov. 12, 1996.

Wood, Ris & Hames, P.C., Donald B. Gentry, Denver, Hamilton & Faatz, Michael E. Gurley, Denver, for Petitioners.

Daniel E. Muse, City Attorney, Alice J. Fischer, Assistant City Attorney, Geoffrey S. Wasson, Assistant City Attorney, Denver, for Respondents.

David W. Broadwell, Denver, for Amicus Curiae Colorado Municipal League.

Justice SCOTT delivered the Opinion of the Court.

Today, we must decide whether a statutory enactment mandating statewide training and certification of peace officers can impose its requirements upon deputy sheriffs employed by the City and County of Denver, a home rule city, when, under our constitution, Denver is granted the authority to control the qualifications, powers, and duties of its deputy sheriffs. ¹ Because we conclude (1) that the Colorado Constitution grants Denver, as a home rule city, authority over the qualifications of its deputy sheriffs and (2) that the state's interest in public safety does not, in light of the limited duties and responsibilities of Denver deputy sheriffs, outweigh the exercise of Denver's authority created by our constitution, we hold that the legislative enactment cannot impose its requirements upon Denver's deputy sheriffs. However, while we affirm the judgment of the court of appeals, we do so on a rationale different from that court and in accordance with the views expressed here.

I.

In 1992, the Colorado General Assembly enacted the Peace Officers Standards and Training Act (POST Act) to provide uniform training and certification for peace officers entrusted with protecting the safety of the citizens of this state. Colo. Sess. Laws 1992, ch. 167, §§ 24-31-301 to -306, at 1091-96 (amended without relevant substantive changes and codified at sections 24-31-301 to -307, 10A C.R.S. (1996 Supp.)). The POST Act also created the Peace Officers Standards and Training Board (POST Board) to establish certification standards and to certify qualified peace officers. Colo. Sess. Laws 1992, ch. 167, §§ 24-31-302, 303, at 1093 (codified at sections 24-31-302, 303).

At all times relevant here, the POST Act required certification for peace officers throughout the state. Colo. Sess. Laws 1992, ch. 167, § 24-31-306, at 1095 (repealed by section 24-31-306(1)(b)). ² Under the POST Act, a "peace officer" includes any "deputy sheriff other than one appointed with authority only to receive and serve summons and civil process ... [who] is employed by the state or a city, city and county, town, judicial district, or county within this state." Colo. Sess. Laws 1992, ch. 167, § 24-31-301(5), at 1092. ³ Despite these statutory provisions, Respondent, the City and County of Denver (Denver), did not require POST certification for its deputy sheriffs.

In June 1992, the POST Board wrote a letter to Denver expressing its concern that Denver deputy sheriffs were not being certified as peace officers. Denver responded that the issue had been previously litigated, ⁴ and that its deputy sheriffs were not required to be certified under the POST Act because they do not engage in routine law enforcement duties. As a result, the petitioners, Fraternal Order of Police of Colorado Lodge # 27, Fraternal Order of Police of Colorado State Lodge, and Larry Nead (collectively F.O.P.), filed this civil action seeking a declaratory judgment that, under the 1992 version of the POST Act, Denver deputy sheriffs are entitled to the minimum training prescribed by the POST Board and must receive state certification in accordance with POST Board standards.

The parties filed cross-motions for summary judgment. F.O.P. argued that the POST Act was applicable to the City and County of Denver because the training and certification of Denver deputy sheriffs is a matter of statewide concern. Denver asserted that, as a home rule municipality defined by Article XX, Section 6, of the Colorado Constitution, its authority arises from its city charter and does not derive from state statutes and, therefore, it had the authority to establish standards and training for its deputy sheriffs. Indeed, the record reveals that the training division of the Denver Sheriff Department conducts an extensive, full-time training program for its deputy sheriffs, which lasts for 10-16 weeks depending on the particular assignment of each deputy. ⁵ The trial court, however, relying on City & County of Denver v. State, 788 P.2d 764 (Colo.1990) [hereinafter Denver v. State ], determined that a substantial state interest exists in protecting the public from inadequately trained peace officers and, therefore, granted F.O.P.'s motion for summary judgment and denied Denver's motion.

On appeal, the court of appeals concluded that the POST Act was not applicable to Denver, a home rule city, because Article XX, Section 2, of the Colorado Constitution specifically grants to Denver the authority to control the qualifications, as well as the powers, duties, and terms or tenure, of its deputy sheriffs. Fraternal Order of Police, 914 P.2d at 487-88. Although it agreed with the trial court that the statute and the constitution were in direct conflict, the court of appeals nevertheless reasoned that when such a conflict arises, the constitution is the paramount law. Id. at 487 (citing Passarelli v. Schoettler, 742 P.2d 867 (Colo.1987)). Thus, the court of appeals reversed the trial court and concluded that Denver's authority under the Colorado Constitution to control the qualifications of its officers, including deputy sheriffs, is absolute and cannot be infringed by state statute. Id. at 488. We do not adopt the rationale of the court of appeals; however, we affirm its judgment on different grounds set forth below.

II.

F.O.P. argues that the principles of Denver v. State are controlling in a case such as this, where a state statute and a home rule provision seek to govern the same conduct and, therefore, the court of appeals' reliance on Passarelli v. Schoettler was misplaced. We agree. Nonetheless, applying the principles announced in Denver v. State, we do not reach the result sought by F.O.P. and, thus, affirm.

A.

Denver is a home rule city existing pursuant to Article XX of the Colorado Constitution. Robertson v. City & County of Denver, 874 P.2d 325, 350 (Colo.1994) (Erickson, J., dissenting). Article XX, Section 6, adopted by the voters in 1912, granted "home rule" powers to municipalities choosing to operate under its provisions and, in doing so, altered the basic relationship of such municipalities to the state. See Denver v. State, 788 P.2d at 766. ⁶ That provision provides in pertinent part:

Home rule for cities and towns. The people of each city or town of this state ... are hereby vested with, and they shall always have, power to make, amend, add to or replace the charter of said city or town, which shall be its organic law and extend to all its local and municipal matters.

Such charter and the ordinances made pursuant thereto in such matters shall supersede within the territorial limits and other jurisdiction of said city or town any law of the state in conflict therewith.

....

... [S]uch city or town, and the citizens thereof, shall have the powers set out in sections 1, 4 and 5 of this article, and all other powers necessary, requisite or proper for the government and administration of its local and municipal matters, including power to legislate upon, provide, regulate, conduct and control:

a. The creation and terms of municipal officers, agencies and employments; the definition, regulation and alteration of the powers, duties, qualifications and terms or tenure of all municipal officers, agents and employees.

Colo. Const. art. XX, § 6 (emphasis added).

Article XX was adopted by a favorable vote of the Colorado electorate. By adopting that amendment to our constitution, the people of Colorado specifically granted citizens of home rule municipalities the right to name their own officers and determine how those officers should be selected, their qualifications, and their tenure. City & County of Denver v. Rinker, 148 Colo. 441, 447, 366 P.2d 548, 551 (1961). Thus, the overall effect of the amendment was to grant to home rule municipalities the power the legislature previously had and to limit the authority of the legislature with respect to local and municipal affairs in home rule cities. Denver v. State, 788 P.2d at 767. Although the legislature continues to exercise authority over matters of statewide concern, a home rule city pursuant to Article XX is not necessarily 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, 609 (Colo.1981).

B.

Under this constitutional transfer of authority, circumstances may arise, as here, where a home rule provision of the constitution conflicts with a statutory enactment of the General Assembly, and the respective authorities of the state legislature and the home rule municipality must therefore be reconciled. In determining which provision should prevail, we have previously 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. See Denver v. State, 788 P.2d at 767; 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, 740-41 (Colo.1985)...