Mountain Law: Colorado supreme court says towns can ban sex offenders (column)
Can a municipality pass an ordinance that effectively bans any registered sex offender from living there? That was the issue in Ryals v. City of Englewood, which the Colorado Supreme Court decided recently.
In 2001, Stephen Brett Ryals had a sexual relationship with a sixteen-year-old girl he coached on a high school soccer team. He pleaded guilty to criminal attempt to commit sexual assault by one in a position of trust and was sentenced to seven years of probation. After violating his probation by continuing to see the girl, he was sentenced to two years in prison. He was released in 2003. Under Colorado law, Ryals was required to register as a sex offender for a decade after his release.
In 2006, the Colorado Parole Board informed the city of Englewood, a home-rule municipality, that it was planning to place a convicted sex offender at an extended-stay hotel near a daycare facility. Originally, the placement was planned in Greenwood Village, but that city passed a local ordinance that effectively banned sex offenders from residing in the city. In response, Englewood passed its own ordinance that operated in the same way, effectively banning sex offenders from residing in the city.
Ryals was apparently not aware of the Englewood ordinance and purchased a home there in 2012. He then called local police to ask about the process of registering as a sex offender. The police officer told him that he was not allowed to reside in the city. He then went to the police station to attempt to register, and the police issued him a citation for violating the ordinance.
Ryals was able to get the ACLU to take his case. He initially sued Englewood in state court, but the city transferred the case to federal court. The federal court ruled against the city and found that the state sex offender statute pre-empted the ordinance. Englewood appealed to the Tenth Circuit Court of Appeals, which asked the Colorado Supreme Court to advise it on this issue of state law.
The case hinged on the home rule doctrine, which I’ve written about before. In brief, the doctrine governs how to handle conflicts between state law passed by the legislature and local law passed by a home-rule municipality. In matters of local concern, local law trumps state law. In matters of statewide concern, state law trumps local law. And in mixed matters of local and statewide concern, state law also trumps local law if they conflict. Determination whether a matter is one of state, local or mixed concern is made on a case-by-case basis by applying various factors. The Colorado Supreme Court considered these factors in the Ryals case and ultimately agreed with the federal court that sex-offender residency is a matter of mixed local and statewide concern.
But did the Englewood ordinance conflict with the state sex offender statute such that it would be pre-empted? The majority said that there was no conflict because nothing in the state statute gives a sex offender the right to reside in any particular location. The majority opinion effectively upheld the ordinance. Two justices dissented, arguing that the ordinance materially impedes, and therefore conflicts with, the overall state sex-offender scheme. They expressed concern that every municipality could adopt similar ordinances and that this domino effect would ultimately lead to sex offenders not registering at all and undermine efforts to rehabilitate offenders.
Having lost his appeal, Ryals may now be tried in criminal court for violating the residency ordinance, a misdemeanor. This could force him to sell his home and move out of Englewood if he still lives there. It bears watching whether other municipalities now pass similar ordinances that prevent residency by sex offenders.
Noah Klug is owner of The Klug Law Firm, LLC, in Summit County, Colorado. He may be reached at 970-468-4953 or Noah@TheKlugLawFirm.com.
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