CERTIFICATE OF COMPLIANCE

 

 

I hereby certify that this brief complies with all requirements of C.A.R. 28 and C.A.R. 32, including all formatting requirements set forth in these rules.

Specifically, the undersigned certifies that:  The brief complies with C.A.R. 28(g).  It contains 2,564 words, as reported by the word processing system used to prepare the brief.  The brief complies with C.A.R. 28(k).  It contains under a separate heading a concise statement of the applicable standard of appellate review with citation to authority.

 

THE TERRY RYAN LAW FIRM, LLC

 

 

By:  ___________________________

Terrance L. Ryan

 

                                                 ATTORNEY FOR AMICUS CURIAE

                                                ROCKY MOUNTAIN GUN OWNERS IN     

                                               SUPPORT OF RESPONDENTS

 

i.

TABLE OF CONTENTS

 

CERTIFICATE OF COMPLIANCE    ……………………………………..... i

TABLE OF CONTENTS    ……………………………………………………..ii

TABLE OF AUTHORITIES    ………………………………………………..iii

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW  ……………v

STATEMENT OF THE CASE   …………………………………………..…....1

STATEMENT OF FACTS  ………………………………………………..……1

SUMMARY OF ARGUMENT  ………………………………………...………2

ARGUMENT   ………………………………………………………………... 3

1. Standard of Review ……………………………………………….3
2. The District Court erred in dismissing SCCC’s first claim

for relief because the CCA pre-empts the Regents’ concealed

carry ban.  …………………………………………………………4

CONCLUSION  ………………………………………………………………...9

CERTIFICATE OF SERVICE          …………………………………………….….11 

ii.

TABLE OF AUTHORITIES

1. A. STATUTES

1. C.R.S. 18-12-105.6    ………………………………………..…….… 9
2. C.R.S. 18-12-201 et. seq. (“CCA”)…………………...….  2, 4, 8, 9, 10
3. C.R.S. 18-12-204(1)(b)  ………………………………………….….8
4. C.R.S. 18-12-214 ……………………………………………….…...8
5. C.R.S. 18-12-214(1)(a)  ………………………………………….….8

 

1. B. CASES

 

1. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007) ……………...4
2. Dias v. City and County of Denver, 567 F.3d 1169, 1178

(10th Cir. 2009) …….………………………………………………...4

 

1. Board of County Commissioners v. Bainbridge, 929 P.2d 691………6

(Colo. 1996)

 

1. Board of County Commissioners v. Bowen/Edwards Assocs,

Inc. 830 P2d 1045, 1059 (Colo. 1992) …………………………..….6

 

1. City of Lakewood v. Pillow, 501 P.2d 744 (Colo. 1972) …………….8
2. City of Northglen v. Ibarra, 62 P.3d 151 (Colo. 2003) ………..….....6

1. Colo. Mining Ass’n v. Board of County Commissioners,

199 P.3d 718 (Colo.  2009)  …………………………………………5

8. Davidson v. Dill, 503 P.2d 157, 162 (Colo. 1972) …………………..3

 

1. Dunlap v. Colo. Springs Cablevision, Inc., 829 P.2d 1286, 1291

(Colo. 1992) .……………………………………………………..…4

1. Lobato v. State, 218 P. 2d 358, 367 (Colo. 2009) ……………….…3, 4

iii.

1. McDonald v. Lakewood Country Club, 461 P.2d 437, 440

(Colo. 1969)  ………………………………………………………….3

 

1. Public Service Co. v.Van Wyk, 27 P.3d 377, 386 (Colo. 2001) ……...4

 

1. Town of Frisco v. Baum, 90 P.3d 845 (Colo. 2004) …………………6

 

1. Board of County Commissioners v. Martin, 856 P.2d 62

(Colo. App. 1993) …………………………………………………...6

 

1. Board of County Commissioners v. Vandemoer, 205 P.3d 423, 427

(Colo.  App. 2008) ………………………………………………...…5

1. Colo. Mining Ass’n v. Board of County Commissioners,

170 P.3d 749, 758         (Colo. App. 2007) …………………………….…5

1. Dempsey v. City & Cnty. Of Denver, 649 P.2d 726

(Colo. App. 1982) ……………………………………………..…….7

1. Dept. of Transp. V. Idaho 192 P.3d 490, 495 (Colo. App. 2008)........5
2. Stud. For Conc. V. The Regents of The Univ.,  

09CA1230 (Colo. App. 4-15-2010) ………………………………….8

1. Town of Carbondale v. GSS Properties, LLC,

140 P.3d 53, 60 (Colo. App. 2005) ………………….……………6, 7 

 

1. Town of Frederick v. N. Am. Res. Co.,

60 P.3d 758, 761-62 (Colo. App. 2002) ………………....……..……5 

 

1. Trinen v. City and County of Denver, 53 P.3d 754, 759

(Colo. App. 2002) ………………………………………………......8

 

1. C. Additional Authority (Legislative History)

1. Statement of State Senator Brophy  ……………………………….10

 

1. Statement of State Senator Ted Harvey  ………………….………..10

iv.

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

 

1. Whether the General assembly intended the Concealed carry Act to divest the Board of regents of its constitutional and statutory authority to enact safety and welfare measures for the University of Colorado’s campuses.

 

1. Whether a constitutional challenge to a statute or ordinance regulating the right to bear arms is governed by the deferential “rational basis” standard of review or a more stringent “reasonable exercise standard of review.

 

STATEMENT OF THE CASE

Amicus Curiae, Rocky Mountain Gun Owners (hereinafter “RMGO”) hereby adopts the Statement of the Case presented by Respondents, Students for Concealed Carry on Campus, LLC, Martha Altman, Eric Mote, and John Davis which fairly sets forth the case.

STATEMENT OF FACTS

RMGO likewise adopts the Statement of Facts presented by Respondents.

SUMMARY OF ARGUMENT

When it enacted the Concealed Carry Act, C.R.S. § 18-12-201 et. seq., (“CCA”) the General assembly took pains to manifest its intent that the statute encompass all areas of the state subject to narrow exceptions.  The CCA itself includes language indicating that such was the intent of the General Assembly.  What legislative history as is available supports the conclusion that the CCA is to have plenary application.

In light of this legislative intent, the field of concealed carry in Colorado has been filled.  Any rule, regulation, order or other enactment by a subordinate governmental body is necessarily preempted by the CCA.  The Board of Regents’ ban, which is the subject of this case, directly invades the province of the General Assembly and is, therefore, preempted and unenforceable.  The Complaint of respondent, Students For Concealed Carry on Campus(“SCCC”) states a cause of action.

 

     I. ARGUMENT

1. A. Standard of Review

Colorado courts of appeal review, de novo, a trial court’s order granting a motion to dismiss.  The courts accept all averments in the complaint as true and view the allegations of the complaint in a light most favorable to the plaintiff.  Lobato v. State, 218 P. 2d 358, 367 (Colo. 2009).

The appellate court must make an independent inquiry into the allegations made in the complaint. McDonald v. Lakewood Country Club, 461 P.2d 437, 440 (Colo. 1969).  It is well established that a court should deny a motion to dismiss unless it is clear beyond a doubt that the plaintiff would not be entitled to relief under any theory of law. See Davidson v. Dill, 503 P.2d 157, 162 (Colo. 1972).

“[C]ourts should be wary of dismissing a case where the pleadings show that an alleged violation of a constitutional right is at issue, since fundamental rights and important public policy questions are necessarily involved.” Id.

When reviewing a motion to dismiss for failure to state a claim, “all averments of material fact must be accepted as true, and all of the

 

allegations in the complaint must be viewed in the light most favorable to the plaintiff.” Public Service Co. v.Van Wyk, 27 P.3d 377, 386 (Colo. 2001).  Thus, “‘a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those [alleged] facts is improbable, and ‘that a recovery is very remote and unlikely.’” Dias v. City and County of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009; quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).  The court cannot grant a motion to dismiss for failure to state a claim unless it appears beyond doubt that no set of facts can prove that the plaintiff is entitled to relief. Lobato at 367, citing, Dunlap v. Colo. Springs Cablevision, Inc., 829 P.2d 1286, 1291 (Colo. 1992).

 

1. B. The District Court Erred In Dismissing SCCC’s First Claim For Relief Because The CCA Preempts The Regents’ Concealed Carry Ban.

This Court has long held to the doctrine that, in those circumstances where the General Assembly has legislated with the intent to completely dominate a field of law, rules, regulations or actions of inferior bodies of the state are preempted.

The purpose of the preemption doctrine is to establish a priority

between potentially conflicting laws enacted by various levels of

government.  Dept. of Transp. v. Idaho 192 P.3d 490, 495 (Colo. App. 2008).   The Dept. of Transportation court noted a tripartite preemption doctrine which may preempt a local regulation in three ways:

1. The express language of the statute may indicate state preemption of all local authority over the subject matter;
2. Preemption may be inferred if the state statute impliedly evinces a legislative intent to completely occupy a given field by reason of a dominant state interest, and;
3. A local law may be partially preempted where its operational effect would conflict with the application of the state statute.    Id.

This preemption matrix has been expressed or followed in other cases. See e.g., Bd. Of Cty. Com. v. Vandemoer, 205 P.3d 423, 427 (Colo. App. 2008), citing, Colo. Mining Ass’n v. Bd. of County Comm’rs, 170 P.3d 749, 758, reversed (on grounds not affecting preemption analysis), 199 P.3d 718 (Colo. 2009); Town of Frederick v. N. Am. Res. Co., 60 P.3d 758, 761-62 (Colo. App. 2002). At its heart, “the purpose of the preemption doctrine is to establish a priority between potentially conflicting laws enacted at various levels of government”.

 

Bd. Of County Comm’rs v. Bowen/Edwards Assocs, Inc. 830 P2d 1045, 1059 (Colo. 1992).  When a state statue and local regulation conflict, the local ordinance may be preempted.  Town of Carbondale v. GSS Properties, LLC, 140 P.3d 53, 60 (Colo. App. 2005), citing, Board of County Commissioners v. Martin, 856 P.2d 62 (Colo. App. 1993).  Most significantly, when the express language of a statute indicates the state’s intent to preempt all local authority over the given subject matter, express preemption arises.  Board of County Commissioners v. Bainbridge, 929 P.2d 691 (Colo. 1996).  Matters of statewide concern are reserved to the General Assembly and local action that invades such areas is preempted.  Town of Frisco v. Baum, 90 P.3d 845 (Colo. 2004).  Inasmuch as the Colorado Constitution specifically addresses the right to keep and bear arms, such is a matter of statewide concern and, absent a specific authorization for a local body to legislate in the area, the field is preempted.  City of Northglen v. Ibarra, 62 P.3d 151 (Colo. 2003).  The basis for this doctrine is the prevention of “patchwork” legislation leading to inconsistent treatment of a field.  Id. This is precisely what the General Assembly addressed when it stated its intention to extend the scope of the

 

 

CCA to all areas of the State.  See, Dempsey v. City & Cnty. Of Denver, 649 P.2d 726 (Colo. App. 1982).

In evaluating express language preemption, a reviewing court must consider any expression by the General Assembly of its intent to completely dominate the field in question. Town of Carbondale, supra at 61.

At the least, the possible existence of an operational conflict requires a factual determination at the trial court level.  Id .at 62.

Such is the case at hand.  The Court of Appeals properly found that the General assembly had intended to cover the entire ground relating to concealed carry.  The CCA explicitly states that C.R.S. § 18-12-204(1)(b), which provides that a concealed carry permit “is effective in all areas of the state, except as otherwise provided in section 18-12-214.” Additionally, C.R.S. § 18-12-214(1)(a), provides that “[a] local government does not have authority to adopt or enforce an ordinance or resolution that would conflict with any provision of [the CCA].”

The CCA (C.R.S. 18-12-201) went on to state that:

“An action or rule that encumbers the permit process by placing burdens on the applicant beyond those sworn statements and specified documents detailed in [the CCA] or that creates restrictions beyond those specified in [the CCA] is in conflict with the intent of [the CCA] and is prohibited.”

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This sweeping reservation of legislative authority over the subject matter of the CCA effectively preempts the contrary action of the Board of Regents which conflicts with the will of the General Assembly.  Additional support for the conclusion that the General Assembly intended to cover the entire field is found in C.R.S.18-12-105.6, the companion to the CCA, which expressly prohibited subordinate governmental bodies[1] from enacting ordinances of resolutions which would limit the right to carry a firearm in a vehicle (which the Board of Regents’ ban does).  See, Trinen v. City and County of Denver, 53 P.3d 754, 759 (Colo. App. 2002); accord, City of Lakewood v. Pillow, 501 P.2d 744 (Colo. 1972).

Like many states and unlike the United States Congress, Colorado maintains little in the way of legislative history.  However, the will of the

General Assembly was, unequivocally, to forestall exactly the patchwork

approach to concealed carry which the CU policy creates.  The attached statements of members of the 2003 Colorado General Assembly reflect a legislative history that intended the CCA to have preclusive effect in all

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areas of the state without exception for the University of Colorado.  State Senators Brophy and Harvey expressly and unequivocally state that the intent of the General Assembly was to completely legislate in the area of concealed carry and to foreclose the area to inconsistent regulations imposed by a college or university.[2] There can be no argument that the General Assembly intended other than what it did…to make the CCA applicable to all areas of the State of Colorado.

 

III     CONCLUSION

 

The General Assembly intended that the CCA be applicable in all areas of the State of Colorado with limited exceptions not relevant to this analysis.  As such, it has completely dominated the field and the attempt by the Board of regents to limit or nullify the scope of the CCA is preempted.  Accordingly, the decision of the trial court to grant appellant’s motion to dismiss was improper and the decision of the Colorado Court of Appeals should be affirmed.

 

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Respectfully submitted this 24^th day of January, 2011,

THE TERRY RYAN LAW FIRM, LLC

 

____________________________

 

Terrance L. Ryan #40009

THE TERRY RYAN LAW FIRM, LLC

125 S. Howes Street, Suite 910

Fort Collins, CO 80521

970-556-9878 Phone

970-416-0087

Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

 

Counsel For Amicus Curiae Rocky Mountain Gun Owners

CERTIFICATE OF SERVICE

True and correct copies of the foregoing Brief of Amicus Curiae Rocky Mountain Gun Owners was placed in U.S., first class mail, postage pre-paid, on January 24, 2011, addressed as follows:

Mr. James Manley, Esq.

Counsel for Respondents

Mountain States Legal Foundation

2596 South Lewis Way

Lakewood, CO 80227

 

And

 

Patrick T. O’Rourke, Esq.

Maggie Wilensky, Esq.

David P. Temple, Esq.

University of Colorado

Office of University Counsel

1800 Grant Street, Suite 800
Campus Box 35 UCA
Denver, CO 80203

 

And

Mr. Edward T. Ramey, Esq., Counsel for Amici Curiae

The Brady Center to Prevent Gun Violence, et al
Isaacson Rosenbaum, P.C.

1001 17th Street Ste. 1800

Denver, CO 80202

THE TERRY RYAN LAW FIRM, LLC

 

 

________________________________

Rebecca Ryan

Certified Paralegal

 

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