CO Supreme Court Finds Ordinance Effectively Banning Sex Offenders from Residing in the City was Not Preempted by State Law

In 2001, Stephen Brett Ryals had a sexual relationship with a sixteen-year-old girl he coached on a high school soccer team. He pled guilty to criminal attempt to commit sexual assault on a child by one in a position of trust and was sentenced to seven years of probation. After violating his probation by continuing to see the victim, he was sentenced to two years in prison. Under the Colorado Sex Offender Registration Act (“CSORA”), he was required to register as a sex offender for a decade after his release. In July of 2006, the Colorado Parole Board informed the City of Englewood that it planned to place a Ryals at an extended-stay hotel that was within a block of a daycare facility. The placement was originally planned in Greenwood Village, but Greenwood Village passed a local ordinance that essentially banned sex offenders from residing in the city. In response, Englewood passed its own emergency ordinance in September 2006 that operated in the same way, effectively barring sex offenders from residing in the city. The United States District Court for the District of Colorado entered judgment in favor of offender and Englewood appealed. The United States Court of Appeals, Tenth Circuit, certified the question of whether city ordinance was preempted by Colorado law to the Colorado Supreme Court.

Colorado’s sex offender scheme has three main features: management of sex offenders by the Sex Offender Management Board (“SOMB”), sex offender registration under CSORA, and parole board supervision of offenders on supervised release or subject to the Colorado Sex Offender Lifetime Supervision Act of 1998 (“SOLSA”). The legislature’s command that the SOMB identify and issue regulations that reflect the “best practices” with respect to living arrangements suggested a need for uniformity in this more specific aspect of sex offender management; however, aside from this provision regarding “best practices,” Colorado law does not explicitly address the more specific issue of residency. In fact, CSORA specifically provides that local law enforcement officers need not approve an offender’s registration “if it includes a residence or location that would violate state law or local ordinance.”

Next the court found that found that the ordinance limiting the number of juvenile sex offenders who could reside in a single foster home created an extraterritorial impact because it decreased the number of homes available in the strained statewide system. Moreover, restrictions such as Englewood’s could potentially create a “domino effect,” where other cities set up similar restrictions to prevent would-be Englewood residents from relocating to them. The court noted that the Colorado Constitution did not specifically commit the issue of sex offender residency to either the state or local government. The history of sex offender regulation and the degree of cooperation required between state and local government in this area also suggested that both sides had a stake in the matter of sex offender residency.

Having found that sex offender residency was a mixed matter, the court then looked to see if there was a conflict between state and local law. The court determined that the test for conflict did not suggest that any potential for conflict must be deemed a conflict, but rather State law and home-rule ordinances conflict where they “cannot coexist” and are “irreconcilable.” Accordingly, the court concluded that Ordinance 34 was not preempted by state law.

Ryals v. City of Englewood, 2016 CO 8 (1/25/2016)