Legal Corner: Colorado Supreme Court limits municipal penalties for ordinance violations

Municipal ordinances often mirror state crimes to allow cases to be heard locally in municipal courts. Municipal courts are part of Colorado’s criminal justice system, but they exist to adjudicate cases arising under municipal ordinances. The cases they hear are expressions of the local governing body’s responses to criminal activity and public safety needs in their communities. Municipal courts alleviate pressure on state courts and provide localized, efficient adjudication of minor offenses, which is more convenient for defendants, victims, and witnesses. In home rule municipalities, a court’s jurisdiction and the definition of crimes and penalties are grounded in the home rule charter and Article XX of the Colorado Constitution. 

Recently, however, the Colorado Supreme Court ruled that municipalities must limit penalties for municipal ordinance violations to the maximum set by state law for identical state crimes. In particular, ordinances must adhere to the reduced potential monetary and jail penalties for misdemeanors and petty offenses established by SB21-271. 

What was SB21-271? 

In 2021, the General Assembly enacted SB21-271 (the Misdemeanor Reform Act) to reclassify and substantially reduce penalties for misdemeanors and petty offenses under state law. The act reduced the classifications of misdemeanors from three to two and created one classification of petty offenses as well as a new category of civil infractions. Under the changes imposed by SB21-271, only class 1 misdemeanors are punishable by up to 364 days in jail or a fine of $1,000. State laws allowing municipal ordinance penalties of up to 364 days in jail or $2,650 in fines remained untouched.  

There was no indication that municipal penalties would be affected by the bipartisan bill. Even the task force from which SB21-271 grew specifically acknowledged it was not addressing municipal offenses in its recommendations. The bill passed unanimously in the Senate but was disputed in the House of Representatives. Gov. Jared Polis signed the law. 

In 2025, legislators recognized SB21-271’s silence on municipal penalties and attempted to impose the prior bill’s limits on municipalities. That effort, HB25-1147, had no bipartisan sponsorship and was opposed in both chambers, including by members who had voted for SB21-271. Gov. Polis vetoed the bill, explaining: “[T]he bill also significantly restricts a municipality’s ability to react to local crime trends in ways that a local government deems most appropriate to improve public safety in their community. It is not in the interest of increasing public safety to constrain a municipality’s ability to set appropriate sentences for crimes within their borders.” 

This legislative history strongly indicates that SB21-271 intentionally excluded municipal penalties and suggests that it would not have received bipartisan support — and might not have been signed by Gov. Polis — if it had. Municipalities certainly would have engaged in and been consulted in the enactment of the law. 

Equal protection theories go bust 

The Colorado Supreme Court agreed in 2024 to hear the claims of two municipal defendants in Aurora and Westminster. The defendants challenged their charges in municipal court as a denial of the equal protection guarantees of Article II, Section 25 of the Colorado Constitution. At least among crimes defined by state law, Colorado is in the minority of states with a rule that equal treatment requires the same potential punishments for the same proscribed conduct. If the conduct is indistinguishable, the potential punishment cannot be more excessive for one crime.  

Under the defendants’ theory, they were denied equal protection by being charged in municipal court under a municipal crime with a more severe penalty than if they had been charged in state court under state law for the same conduct.  

At oral argument, the justices appeared disinterested in the defendants’ equal protection theories. The resulting decision declined to address the equal protection theory. However, in its subsequent home rule analysis, the Court noted that “there is not an inherent need for statewide uniformity” in setting penalties for low-level crimes and did not consider equal protection guarantees as a component of its analysis.  

As it stands, under Colorado jurisprudence, there has never been a holding that equal protection is implicated when a municipal ordinance and a state criminal statute involving the same conduct could result in different penalties. 

Unintended preemption in In re Camp and In re Simons 

The defendants found success in what may have been a supplemental theory that the Misdemeanor Reform Act preempted the municipal penalties of home rule municipalities. The Court reached the same outcome using a novel implementation of “operational conflict” preemption because “when municipal and state law prohibit identical conduct, a municipal penalty that exceeds the penalties permitted by the state ‘necessarily authorizes what the state statute forbids.’” 

First, the Court regarded the issue as a matter of mixed state and local concern. Under Article XX jurisprudence, courts weigh the interests of the state and municipalities by reviewing the totality of the circumstances to see whether the primary authority for regulation of an issue falls with the state, home rule municipalities, or both. Importantly, the Court classified the issue as one of establishing penalties for non-felony (or low-level) criminal offenses. Nominally following the analysis outlined in its prior cases, the Court discounted the constitutional enumeration of the power to establish penalties for ordinance violations in Article XX and aggrandized the concept of extraterritoriality (or the effect on persons who do not live in a municipality but choose to commit crimes within it). The Court swiftly concluded that both state and municipal governments had an interest in regulating the penalties for such conduct, much as both had interests in regulating the conduct itself. 

Then, given the finding of mixed concern, the Court proceeded to the preemption analysis and held that “the challenged municipal ordinances were preempted to the extent that they authorize harsher penalties than state law permits for identical conduct.” The Court acknowledged that SB21-271 neither expressly nor impliedly preempted municipal penalties. That much is obvious, given the confinement of that law to state crimes and resounding omission of municipal crimes. 

Instead, the Court relied on a concept of “operational conflict” preemption which is used when there is no indication of legislative intent. The theory had previously been used in cases involving significant and irreconcilable conflicts between local land use laws and oil and gas regulation or standards for advertising near federal-aid highways and local sex offender residency restrictions and the state’s system for foster child placements. In such cases, “the effectuation of a local interest would materially impede or destroy the state interest.” The Court previously has described a local ordinance authorizing what state law forbids or vice versa as necessarily satisfying this standard. 

Here, the Court divined a state interest in “uniform and consistent penalties” from SB21-271’s legislative history. The Court relied solely on a request from Gov. Polis in 2020 to the now-defunct Colorado Commission on Criminal and Juvenile Justice (CCJJ) to study sentence guidelines and a statement that the CCJJ drafted SB21-271 to promote “consistency and certainty in sentencing.” 

The Court ignored, however, minutes of a CCJJ working group highlighted in CML’s amicus curiae brief that confirmed, “Municipal charges are not addressed in this recommendation.” [Notably, Gov. Polis’s 2025 veto reflected a desire that a successor to the CCJJ study the “far-reaching sentencing changes contemplated in HB25-1147” with all relevant stakeholders.] The Court’s preemption analysis also did not account for a key distinction that mitigated against finding an equal protection violation: the establishment of crimes by separate legislative entities involving separate court systems.  

Ultimately, the Court held that the state’s interest was materially impeded without explaining the materiality of the impediment or how the separate criminal justice systems were not reconcilable. Instead, the Court appeared to find materiality through the fact that criminal defendants could be subject to penalties in a municipal court that a state court was forbidden from imposing. 

Looking forward after Simons and Camp 

Municipal attorneys and courts are already advancing local changes to accommodate the ruling. Courts and prosecutors are modifying advisements and plea guidelines to conform to state law. City councils and town boards (home rule and statutory alike) will be presented with ordinances reducing penalties or conforming them to state limits. Other inconsistencies between municipal criminal ordinances and questions of the state’s regulation of municipal court will be subjects for further investigation. 

The full impact of these cases on Article XX and the powers of home rule municipalities is unclear and will be tested through future litigation. The use of “operational conflict” preemption came as a shock to municipal practitioners. It also may have surprised the legislators and governor who unwittingly enacted the preemption. The apparent elevation of the theory in the Court’s eyes and the willingness of the Court to discern an overwhelming state interest and supply legislative intent where there was none is concerning.  

It is entirely possible, however, that the Court’s decision can be limited to the nature of the case. The judicial system is attentive to matters of criminal punishments, especially those involving jail time or significant fines. Although the Court did not rule on the equal protection theory, the Court’s concern for uniform treatment for “identical conduct” suggests an interest in the outcome advocated for by the theory’s proponents.  

Moving forward, home rule municipalities should give appropriate weight to the potential for operational conflict preemption but should not fear that Article XX has been eviscerated. The Court’s jurisprudence still suggests that operational conflict preemption does not apply simply because the state has regulated a matter of mixed concern (as it might in an implied preemption analysis). There must be a material impediment to a state interest, which should be identified by significant or longstanding state regulation. 


This column is not intended and should not be taken as legal advice. Municipal officials are always encouraged to consult with their own attorneys.