Lead Opinion
delivered the Opinion of the Court.
The question raised in this appeal is whether certain provisions of section 42-4-
Because we conclude that the regulation of automated vehicle identification systems to enforce traffic laws is a matter of mixed local and state concern, we hold that the challenged provisions of section 42-4-110.5 and section 42-8-112(14) are not superseded by the Petitioner-cities' local ordinances or charters. Therefore, we affirm the judgment of the trial court and uphold the constitutionality of the challenged provisions of section 42-4-110.5 and section 42-8-112(14).
I FACTS AND PROCEDURAL HISTORY
In this case, the cities of Commerce City, Westminster, Fort Collins, and Colorado Springs (Cities), each home-rule municipalities under Article XX of the Colorado Constitution, challenge the constitutionality of certain provisions of section 42-4-110.5 and section 42-3-112(14) regulating the use of automated vehicle identification systems, popularly known as photo radar and photo red light, in Colorado.
The Cities argue that certain provisions of section 42-4-110.5 and section 42-8-112(14) unconstitutionally infringe on their home-rule powers because Article XX, Section 6 of the Colorado Constitution unambiguously reserves to the Cities the power to enforce local traffic ordinances and operate municipal courts. The Cities do not argue that all of the restrictions placed on home-rule cities by the state legislation violate their home-rule powers, rather they challenge the following: (1) the ninety day service provision for traffic violations detected by AVIS
In 1996 and 1997, both prior to and after the passage of Senate Bill 97-36,
Prior to the General Assembly's regulation of AVIS, little uniformity existed in the way Commerce City and Fort Collins implemented their respective systems. For example, while Fort Collins generally notified drivers of the city's use of AVIS by placing appropriate signs at its city entrances, it did not post notification signs at AVIS locations themselves. Commerce City, on the other hand, posted signs about 200 feet before the AVIS units. Moreover, while Fort Collins stationed an officer with the automated-system unit during use, Commerce City did not do so. In fact, in Commerce City, the AVIS vendor, a private corporation, positioned the unit at the field location, and a police officer would only occasionally check to assure it was in the correct location. In addition, while Fort Collins used automated systems on state highways within its city limits about 20% of the time, it primarily used them on local streets. Commerce City, however, used AVIS exclusively on state highways within its borders, and never on its local streets. Moreover, in Commerce City, approximately 90% of AVIS citations were issued to nonresidents while in Fort Collins about 483% of AVIS citations were issued to non-residents.
Furthermore, Fort Collins and Commerce City paid their AVIS vendors based on a percentage of the fine collected and neither city's law enforcement agency directly issued AVIS citations. Rather, a private, out-of-state corporation decided whether to issue a citation based on considerations such as the clarity of the driver's photograph, whether the gender of the driver in the photograph matched the registered owner of the vehicle, and whether the license number could be clearly read. After making a decision, the corporation itself, rather than the police, directly issued the automated-system citations. In addition, the AVIS vendor did not initially include a copy of the photograph with the summons that was mailed to the vehicle's registered owner; rather the AVIS vendor mailed photographs to the municipal courts to be held there. Thus, drivers ticketed by automated systems were required to go to the municipal court to view a photograph to determine whether the picture accurately identified the driver charged.
In 1997 and 1999, in response to concern about the use of AVIS within Colorado and with the belief that "the use of automated vehicle identification systems ... is a matter of statewide concern" which calls for "uniform state standards," § 42-4-110.5(1), the Colorado General Assembly passed Senate Bill 97-36 and House Bill 99-1364, which were codified at section 42-4-110.5 and seetion 42-3-112(14). These statutes established uniform regulations for the use of AVIS in Colorado.
Thereafter, the Cities filed a complaint in district court challenging the constitutionality of the state legislation, and the parties filed cross-motions for summary judgment. The Cities argued that certain subsections of section 42-4-110.5 and section 42-4-112(14) impermissibly infringe on their home-rule powers under Article XX, Section 6 of the Colorado Constitution.
The State argued that the use of AVIS in Colorado is a matter of statewide concern (or at least a matter of mixed state and local interest), and therefore the state legislation regulating these enforcement technologies supersedes conflicting local ordinances.
The trial court held that the use of "photo radar" is one of mixed statewide and local interest. The trial court, noting that there is no " 'litmus-like indicator for resolving whether a matter is of local, statewide or mixed concern, " (R. at v. III, p. 582) (quoting Natl Adver. Co. v. Dep't of Highways,
II. ANALYSIS
To determine whether the Cities' ordinances and charters supersede state legislation regulating AVIS we must answer two basic questions. First, is the enforcement of traffic laws by automated systems a matter of local, state, or mixed local and statewide concern. Second, if the matter is one of local or mixed concern, do the state statutes conflict with the Cities' local ordinances or charters. If a bome-rule ordinance or charter conflicts with a state statute in a matter of local concern, the home-rule provision supersedes the state legislation. Conversely, if a home-rule ordinance or charter conflicts with a state statute in a matter of mixed concern, the state statute supersedes the home-rule provision.
To answer these two questions, we will first outline well-established Colorado law governing our municipal home-rule and preemption analysis. Next, we will apply this law to determine whether the matter is one of local, state, or mixed concern. And, finally, because we conclude that the regulation of AVIS is a matter of mixed concern, we will analyze whether a conflict exists between the challenged subsections of section 42-4-110.5 and section 42-3-112(14) and the Cities' local ordinances or charters.
A. Home-Rule Cities and the Nature of the Interest at Stake
Commerce City, Westminster, Fort Collins, and Colorado Springs are each home-rule cities existing pursuant to Article XX of the Colorado Constitution. Section 6 of Article XX, adopted by Colorado voters in 1912, granted home-rule powers to municipalities operating under its provisions, thereby altering the basic relationship between such municipalities and the state. City & County of Denver v. State,
We have previously recognized three categories of regulatory matters: (1) matters of local concern; (2) matters of statewide concern; and (8) matters of mixed state and local concern. City & County of Denver v. State, T88 P.2d at 767. Both home-rule cities and the state may legislate in areas of local concern; however, if a home-rule ordinance or charter conflicts with a state statute regulating a local matter, the home-rule provision supersedes the conflicting state provision. Qwest,
Thus, the constitutionality of the challenged provisions of section 42-4-110.5 and section 42-3-112(14) depends on whether the enforcement of traffic violations using automated systems is a local, statewide, or mixed issue. Moreover, whether a particular subject matter is one of state, local, or mixed
We also recognize that although these categories may be useful in resolving conflicts between local and state legislation, they should not be mistaken for "mutually exelu-sive or factually perfect descriptions of the relevant interests of the state and local governments." City & County of Denver v. State,
However, we have found several general factors to be helpful. These include: (1) the need for statewide uniformity of regulation; (2) the impact of municipal regulation on persons living outside the municipal limits; (8) historical considerations, specifically whether the matter is one traditionally governed by state or by local government; and (4) whether the Colorado Constitution specifically commits the matter to state or local regulation. Telluride,
Thus, applying these principles to this case, we must first determine whether the regulation of AVIS is of local, state, or mixed state and local concern. We note that the General Assembly has declared, "[Tlhe enforcement of traffic laws through the use of automated vehicle identification systems under this section is a matter of statewide concern and is an area in which uniform state standards are necessary." § 42-4-110.5(1), 11 CRS. (2001). In assessing the relative interests of the state and home-rule cities, a declaration by the General Assembly that a matter is one of statewide concern is relevant, but not determinative. Quest,
1. Uniformity
We first analyze whether a statewide interest in the uniform regulation of AVIS exists. The Cities argue that the fact that photo radar and photo red light systems are new technologies, which may be implemented differently by particular cities and which theoretically may affect drivers' expectations about being ticketed for traffic violations, does not support the need for uniformity. They point out that law enforcement has implemented new technologies in the past-such as traditional handheld radar-and the courts have adequately fashioned standards for the use of these technologies. Thus, they argue that uniformity alone does not support a finding that the state has an interest in the matter.
The Cities are correct that uniformity in and of itself is not a virtue, nevertheless, " 'in the appropriate case the need for uniformity in the operation of the law may be a sufficient basis for [state] legislative preemption" " City & County of Denver v. State,
In Qwest, we recognized that "advances in technology ... have greatly increased the need for uniformity of [telecommunications] regulation." Qwest,
As in Qwest, we again recognize that advances in technology, which have significantly changed the nature of the enforcement of traffic laws, increase the need for uniformity of AVIS regulation. In fact, the use of automated systems for traffic control represents such a considerable shift in traffic enforcement that these systems alter Colorado citizens' basic expectations about how they will be ticketed for traffic violations. Before the use of automated systems, drivers who violated traffic laws expected to be stopped and issued a citation at the time of the violation or immediately following it. This served the important purpose of notifying the driver of an alleged violation. In contrast, when cited by an automated system, drivers will not be on immediate notice of an alleged violation. Thus, this new technology significantly alters Colorado drivers' expectations about how traffic violations will be enforced against them. Accordingly, the state has an interest in providing Colorado drivers with uniform AVIS regulations.
In addition, we recognize that changing conditions may affect the analysis of whether an issue is one of local, state, or mixed concern. Our reasoning in People v. Graham,
The words "local and municipal" occurring in the [home-rule amendment] is not a fixed expression that may be eternalized. What is local, as distinguished from general and statewide, depends somewhat upon time and cireumstances. Technological and economic forces play their part in any such transition. As motor vehicle traffic in the state and between home-rule municipalities becomes more and more integrated it gradually ceases to be a "local" matter and becomes subject to general law.
Graham,
Here, the Cities admit that the road system within each of their city limits is a mix of local and state roads and highways. In fact, given the nature of the Front Range and Denver Metropolitan areas, a driver could pass through multiple jurisdictions in a simple daily commute to work. Without uniform state legislation, Colorado drivers may be subject to a significant variety of conflicting local legislation, further increasing the potential for confusion and substantially affecting their expectations. Indeed, Fort Colling's and Commerce City's different implementation of automated systems illustrates the potential for a myriad of regulations across the state. The state legislation works to protect Colorado citizens' interests by providing basic standards that cities using AVIS must follow. Thus, the legislation establishes a degree of uniformity-providing baseline regulations for those drivers ticketed under automated systems-and allows Colorado citizens to develop uniform expectations about the use of automated systems.
Also important to our uniformity analysis is the fact that cities wishing to ticket traffic violators using automated systems must access those drivers' names and addresses through the state motor vehicle registration office. Thus, a certain level of cooperation between a city and the state is necessary to make the system work. We have found the need for cooperation between cities and the state an important factor in our analysis. Cf. City & County of Denver v. State,
2. Extraterritorial Impact: The Impact of Municipal Regulation on Persons Living Outside the Municipal Limits
The Cities argue that the proper test for whether a municipal law has an extraterrito
We have defined extraterritorial impacts as "those involving the expectations of state residents." Walgreen v. Charnes,
The fact that about 90% of tickets in Commerce City were issued to non-residents distinctively demonstrates the effect of its AVIS use on Colorado citizens in general. In fact, Commerce City, Westminster, Colorado Springs, and to a lesser degree, Fort Collins, are all located within busy commuter corridors. Without the unifying state legislation, a driver-simply by commuting to work on a typical day-could be subjected to a patchwork of rules and procedures by individual cities. Thus, the regulation of automated vehicle identification systems affects the residents of Colorado as a whole, as opposed to simply affecting local residents.
3. History and Tradition
We next consider whether the enforcement of traffic violations through the use of automated vehicle identification systems is a matter traditionally governed by state or by local government. The Cities correctly note that we have held that the "regulation of traffic speeds on a city street is a matter of local and municipal concern and, as such, falls within the scope of the home rule amendment." People v. Hizhniak,
However, we have rejected a "categorical approach to the determination of that which is local and municipal and that which is general and state-wide," focusing instead on the "high degree of importance of the facts and cireumstances of the particular case" to ascertaining the status of the matter at issue. City & County of Denver v. Pike,
The matter at issue in this case differs significantly from the traffic control issues we considered in Highniak and Henry. Our holding in Highniak was based on our reasoning that cities are best able to determine appropriate speed limits based on local conditions such as weather, geography, and road conditions. Without explaining our specific reasoning, we concluded that because the cities have the power to set appropriate speeds, they also have the power to prescribe the penalties for speeding violations. Hizhniak,
The General Assembly's regulation of AVIS does not affect the Cities' legitimate interest in setting the speed limit on city streets, nor does it affect their interest in regulating traffic at local intersections (such as determining whether to install traffic signals and determining right-of-way rules and the like). Rather, the challenged provisions of section 42-4-110.5 and section 42-3-112(14) simply provide basic, uniform guidelines for entities enforcing traffic laws through the use of automated systems.
Thus, although we have held that the regulation of speeding and of traffic at intersections is a purely local matter, we have never addressed the specific question at issue in this case and we have never held that traffic enforcement mechanisms that fundamentally alter Colorado citizens' basic expectations about how they will be cited for infractions are a purely local concern. Therefore, we conclude that while we have traditionally deemed the enforcement of local traffic laws regulating speeding and intersection infractions a matter of local concern, we have never specifically addressed the unique considerations the regulation of AVIS presents.
4. The Colorado Constitution
The Cities argue and the trial court agreed that the "right to impose and enforee fines for the violation of municipal ordinances"-a local power under the Colorado Constitution-"includes the right to set and enforce traffic rules on local roads." (R. at v. III, p. 587.) The trial court ruled that this right is implicated by the statutory provisions at issue because the state legislation sets maximum fines, requires warnings in particular cireumstances, and prevents cities from accessing state records if they fail to comply with section 42-4-110.5. Thus, the court concluded that these provisions interfere with the Cities' right to regulate the enforcement of speeding violations. The Cities also argue that the state legislature's attempt to dictate the maximum fines for AVIS-detected violations constitutes a direct attack on the authority of cities to conduct their municipal courts under Article XX, Section 6(c). We disagree.
Article XX, Section 6(h) grants to home-'rule cities the power to legislate upon, provide, regulate, conduct, and control "the imposition, enforcement and collection of fines and penalties for the violation of any of the provisions of the charter, or of any ordinance adopted in pursuance of the charter." Colo. Const. art. XX, § 6(h).
In addition, Article XX, Section 6(c) grants to home-rule cities the power to control "the creation of municipal courts; the definition and regulation of the jurisdiction, powers and duties thereof, and the election or appointment of the officers thereof." Colo. Const. art. XX, § 6(c).
It is clear that Article XX Section 6(h) provides a constitutional basis for the power of a home-rule city to collect, enforce, and impose fines and penalties for the violation of municipal laws. Moreover, Section 6(c) clearly confers on home-rule cities the power to create municipal courts and to define and regulate their jurisdiction, power, and duties. However, when the subject matter of the local regulation implicates both local and state concern, the constitution can not be
Thus, while we have determined that it is "significant" that the text of the Colorado Constitution specifically commits a particular matter to state or local regulation, this alone is not dispositive. Fraternal Order of Police,
5. Interest at Stake is a Mixed State and Local Issue
Our analysis shows that both the Cities and the state have important interests at stake. The state's interests include the uniform regulation of automated vehicle identification systems-a method of traffic enforcement so fundamentally different than traditional methods of enforcement that it significantly alters Colorado citizens' basic expectations. In addition, the extraterritorial impact is clear: the two cities that had already implemented automated systems ticketed a high number of non-residents. Moreover, given the practicalities of our commuter culture and our integrated highway system, Colorado drivers may regularly drive through multiple jurisdictions, increasing the impact on Colorado's citizens as a whole.
On the other hand, the Cities have an interest in regulating traffic on their local streets and assuring that those streets are safe for their citizens. The Cities also have an interest in enforcing fines against those who break local traffic laws and in controlling their municipal courts.
On the whole, we cannot conclude that the State's interests are so insignificant that the matter is one of purely local interest. Thus, we hold that the regulation of automated vehicle identification systeras to enforce traffic laws is a matter of mixed state and local concern. Therefore, the challenged provisions of section 42-4-110.5 and section 42-8-112(14) do not unconstitutionally infringe on the Cities' home-rule powers under Amendment XX, Section 6 of the Colorado Constitution.
B. Conflict
Because we hold that the regulation of AVIS is a matter of mixed local and state concern, we must determine whether the state statutes conflict with the Cities' local ordinances or charters. The test to determine whether a conflict exists is whether the home-rule city's ordinance scheme authorizes what the state legislation forbids, or forbids what the state legislation authorizes. Denver & Rio Grande W. R.R. Co. v. City & County of Denver,
We find that each of the challenged state statutory provisions conflicts with at least one of the cities' ordinances or charters. First, the ninety-day service requirement in section 42-4-110.5(@)(a)(ID) conflicts with Commerce City's one year statute of limitations.
III. CONCLUSION
In sum, because we find that the regulation of automated vehicle identification systems to enforce traffic laws is a matter of mixed local and state concern, we hold that the challenged provisions of section 42-4-110.5 and section 42-3-112(14) supersede the conflicting provisions of the Cities' local ordinances and charters. Accordingly, we affirm the trial court's judgment.
Notes
. We granied certiorari on the following issue: Whether certain state statutes, which purport to direct, limit and control the Plaintiff Home Rule Cities' use of camera radar and red-light camera to enforce their local traffic laws in their municipal courts, are, under Article XX, Section 6, of the Colorado Constitution, superseded by Plaintiffs' local ordinances.
. The parties stipulated that the enforcement technology at issue in this case, camera radar systems and red-light camera systems, {alls within the definition of an automated vehicle identification system, as defined by section 42-4-110.5(6), 11 CRS. (2001). We will refer to these technologies as "AVIS" in this opinion.
. § 42-4-110.5(2)(a)(IM), 11 C.R.S. (2001).
. § 42-4-110.5(2)(d)(F), 11 C.R.S. (2001).
. § 42-4-110.5(4)(a), 11 C.R.S. (2001).
. § 42-4-110.5(4)(b)(I), 11 C.R.S. (2001).
. § 42-4-110.5(4)(b)(ID, 11 C.R.S. (2001).
. § 42-4-110.5(4.5) 11 C.R.S. (2001).
. § 42-4-110.5(5), 11 C.R.S. (2001).
. § 42-3-112(14)(a),(b), 11 C.R.S. (2001).
. Senate Bill 97-36 was codified at section 42-4-110.5, 11 CRS. (2001).
. Specifically, in 1996, Commerce City and Fort Collins adopted ordinances authorizing the use of camera radar to detect and enforce speeding violations and the use of red-light cameras to detect and enforce red-light violations within each city's limits In September 1997, three months after the passage of Senate Bill 36, Colorado Springs adopted an ordinance authorizing the use of red-light cameras to enforce red-light violations.
. The Cities also argued that the personal service requirement of section 42-4-110.5(2)(a)(I)(A), 11 C.R.S. (2001) violates the authority granted to the judiciary by Article VI, Section 21 of the Colorado Constitution as well as the separation of powers principles of Article III because the service provision is in direct conflict with Rule 204(e) of the Colorado Municipal Court Rules of Procedure. The trial court agreed, holding that section 42-4-110.5(2)(a)(I)(A) unconstitutionally encroaches on the exclusive powers of this court and violates the separation of powers doctrine. The State did not appeal this issue.
Although the Cities also challenged the constitutionality of section 42-4-110.5(2)(a)(I)(B), 11
Nothing in this section may be deemed to prevent the state, a county, a city and county, or a municipality from sending by certified mail a written notice, that shall include a copy of the photograph or image of the driver, to the defendant advising the defendant of the alleged violation and permitting the defendant to waive such service of process. Any such notice shall contain on the top of the first page of the notice in fourteen-point type or larger the following statement:
"'Under Colorado law you may have certain rights concerning this violation, including the right not to pay any fine until a citation has been personally served upon you by a certified peace officer."
§ 42-4-110.5(2)(a)(I)(B) (emphasis added).
This notice section allows a state, county, city and county, or municipality to send a written notice by certified mail to the defendant, permitting him to waive "such service of process." The section states that the notice must contain a copy of the photograph or image of the driver with a notice, in fourteen point type, that the defendant "may have certain rights ... including the right not to pay any fine until a citation has been personally served upon you by a certified peace officer." Thus, among other things, section 42-4-110.5(2)(a)(I(B) requires that if an entity decides to send a notice to a defendant in order to give the defendant the option of waiving the personal service of process requirement found in section 42-4-110.5(2)(a)(I)(A), that notice must inform the defendant that he may have certain rights, including the right to personal service of the complaint pursuant to section 42-4-110.5.(2)(a)(D(A). However, the trial court struck down the requirement in section 42-4-110.5(2)(a)(ID(A) that "a penalty assessment notice or summons and complaint" be "personally served" by a level I or level Ia peace officer or by a deputy sheriff of a city and county. Therefore, by striking down section 42-4-110.5(2)(a)(I)(A), the trial court necessarily rendered moot section 42-4-110.5(2)(a)(I)(B). Accordingly, we do not address the constitutionality of the service requirement of 42-4-110.5(2)(a)(I)(A) or of the notice provision of section 42-4-110.5(2)(a)(D(B).
. The court also ruled that section 42-3-112(14) does not violate the due process or equal protection rights of municipalities under the Colorado Constitution. (R. at v. III, pp. 591-92.) On appeal, the Cities do not argue that section 42-3-112(14) violates their due process or equal protection rights, rather they argue that the state may not deny them access to records that are necessary to effectuate their home-rule powers to enforce traffic through the use of AVIS. Accordingly, we do not address due process or equal protections arguments.
. Moreover, a particular matter may be one of mixed concern even if a home-rule city has considerable local interests at stake if "sufficient state interests are also implicated." Telluride,
. In Hizhniak, the City of Sterling, a home-rule city, argued that the court should uphold its right to impose harsher penalties for traffic speed violations than those imposed by the state based on its constitutional home-rule status. Hizlmiak,
. The competing statute and ordinance at issue in Henry involved the right of way at an intersection. City and County of Denver v. Henry,
. Commerce City Charter, ch. VIII, § 8.1(d)(2).
. Fort Collins, Colo., Code of the City of Fort Collins, ch. 28, art. II, § 28-17, (§ 4-10) (2001)
. Fort Collins Code, ch. 28, art. H, § 28-17 (§ 4-10(c)); Commerce City Code, ch. 11, art. IL, § 11-23 (§ 1101(12)(c)).
. Fort Collins Code, ch. 1, § 1-15; Commerce City Code, ch. 11., art. II, § 11-22 (2001); Westminster, Colo., Westminster Municipal Code, § 10-1-4, § 1-8-1 (1998) [hereinafter Westminster Code].
. Westminster Charter § 13.3; Fort Collins Code, ch. 8, art. IV; Westminsier Code, title 15, ch. 1.
. Colorado Springs, Colo.Code of the City of Colorado Springs, § 22-17-114 (1980); Fort Collins Code, ch. 28, art. II, § 28-17, (§ 4-10(c)); Commerce City Code ch. 11, art. IL, § 11-23, (§ 603(5)(c)); Commerce City Code ch. 11, art. II, § 11-23 (§ 1101(12)(c)).
Dissenting Opinion
dissenting:
Because I believe that our clear and emphatic holding in People v. Hizhniak,
The respondent in Hizhniak was charged with speeding on a local street in the City of Sterling, a home-rule city. "Clocked," presumably by radar technology, at thirty-five miles-per-hour in a twenty-five miles-per-hour zone, Hizhniak was tried and convicted, fined $100, and sentenced to ten days in jail. Id. at 428,
In Fraternal Order of Police v. City & County of Denver, we explained that "we rely upon our own precedent to indicate what constitutes a local concern, as opposed to a statewide concern."
Because Hizhniak and the instant case are substantively and functionally indistinguishable, the majority's decision here, in my view, works an implicit but unmistakable repudiation of our precedent in that case. Hishniak centered not on which entity was allowed to set speed limits, but on which had the authority to establish the rule for determining speed limit violations. As in Highmiak, here the State urges that it possesses that authority and thus should decide the standard for speeding violations detected by photo radar. Hence, it argues that the statutorily pre-seribed limitations on fines, required signage, and prescribed warnings to drivers violating the speed limit by nine miles-per-hour over the limit or less, apply equally to municipalities created by the General Assembly as by the constitution. But here, no less than in Hizhniak, we should permit home-rule municipalities to determine how they wish to regulate and enforce the local speed limit. To conclude otherwise, I submit, reads out of the Colorado Constitution Article XX, See-tions 6(c) and (h), which provide that home-rule cities shall have the authority to create and regulate municipal courts, and to regulate the imposition, enforcement, and collection of fines for violations of municipal ordinances.
Unlike the majority, then, I believe that the matter at issue in this case is governed by our cases deciding factually and substantively similar traffic control issues. The majority attempts to distinguish Hizhniak and City & County of Denver v. Henry,
The brief of amicus City of Boulder, however, demonstrates that this is a distinction without a difference. Boulder asserts that it "has been particularly interested in using AVIS to slow traffic on residential streets which are, by misfortune of geography and history, heavily traveled. Effective enforcement can obviate the use of structural changes (dead ends, humps and bumps, or traffic circles) which can have unwanted deleterious effects on other municipal goals such as connectivity and emergency response." Thus, a city's use of radar is inherently connected to local conditions. Municipalities choose to mount AVIS systems, just as they choose to locate speed-trapping eruisers, in precisely those locations that, by virtue of weather, geography, road condition, or congestion, pose the greatest threat to local drivers.
In my view, the majority mischaracterizes the municipal power at issue here to avoid the clear import of our precedent. It describes the issue as one centering on the "power to regulate the use of photo radar systems," rather than the power to enforce speeding regulations. This characterization inevitably leads to the conclusion that municipalities have not historically been vested with the power to regulate AVIS technology an irrefutable logical deduction in light of the technology's recent evolution. The effect of this approach is to make a home-rule municipality's powers depend on what type of technology it deploys, not what type of power it is exercising.
Under the majority's rule, the City of Sterling would retain its authority to fine and imprison Mr. Hizhniak provided an officer detected his speed-limit violation using hand-held radar or airplane-assisted technology. Should the city instead elect to install a camera in the back of that officer's vehicle, however, it would be barred from prosecuting a speeding motorist unless it first issued a warning and could, at most, assess a $40 penalty. This approach clearly contravenes People v. Wade in which, a decade after
In my view, the extent of a home-rule city's powers cannot be frozen in time and made to depend upon the novelty of the technological tools it uses to enforce its ordinances. Making the innovative quality of a device the linchpin in the local versus statewide concern inquiry renders home-rule authority reliant on factors not enumerated in the constitution and never before contemplated by this court. It also defies our common experience: in the post-World War Two era, radar technology was novel. See, e.g., State v. Dantonio,
I am also unpersuaded by the argument that the State obtains an interest in regulating speed limits enforced by photo radar simply because some drivers might be confused if they receive different types of photo radar tickets in different jurisdictions or if their infraction is not cited on-the-spot. Maj. op. at 1281. As it is now, speeding drivers cope with receiving different types of citations issued variously by troopers patrolling busy state highways and deputies monitoring lonely country roads. Similarly, due to "outside forces," drivers do not always receive parking citations or summonses affixed to their vehicles following an infraction of the local parking code. Patterson v. Cronin,
In sum, our case law establishes that the regulation and enforcement of traffic on local roads is a local concern. Absent a compelling reason to depart from our precedent, particularly a case so directly on point, I must adhere to the principle that traffic regulation is a local concern, as established in Hizghniak. Accordingly, I would conclude the provisions of the municipal regulations supersede the conflicting provisions of the photo radar statute. Therefore, I would reverse.