Ainscough v. Owens
| Decision Date | 24 May 2004 |
| Docket Number | No. 03SC164.,03SC164. |
| Citation | 90 P.3d 851 |
| Parties | Harlen AINSCOUGH; Michael Coulter; Barbara Johnson; Ron Parker; Robert Becker; Lorraine Surprenant; Colorado Federation of Public Employees; Colorado Association of Public Employees; and American Federation of State, County, and Municipal Employees, Colorado Council 76, Petitioners v. Bill OWENS, Governor, State of Colorado; and Jeffrey M. Wells, Executive Director of the Colorado Department of Personnel and General Support Services, Respondents. |
| Court | Colorado Supreme Court |
Brauer, Buescher, Goldhammer & Kelman, P.C., Thomas B. Buescher, Joseph M. Goldhammer, Denver, Colorado, Attorneys for the Petitioners.
Hogan & Hartson, L.L.P., Ty Cobb, Peter H. Walsh, Denver, Colorado, Attorneys for Bill Owens, Governor of the State of Colorado.
Perkins Coie, L.L.P., Robert N. Miller, Stephanie E. Dunn, Denver, Colorado, Michael E. McLachlan, Durango, Colorado, Attorneys for Jeffrey M. Wells, Executive Director of the Colorado Department of Personnel and General Support Services.
The question before us is whether individual state employees and their labor organizations have standing to sue the Governor and the Executive Director of the Department of Personnel to challenge a 2001 Executive Order and ensuing Personnel Policy that eliminated employee payroll deductions for union dues. In the trial court, the employees asserted eight claims for relief. They claimed that the policy violated three provisions of the Colorado Constitution () and two statutes (a payroll deduction law and the Administrative Procedure Act). The Governor moved to dismiss on the grounds that the employees lacked standing to sue him, that the claims were moot, and that the payroll deduction policy did not violate the Colorado Constitution or state statutes. The Executive Director also moved to dismiss. He did not assert standing or mootness, but, like the Governor, he contended that the policy did not violate any law.
The trial court granted the motions to dismiss without stating any reason for the ruling. On appeal, the court of appeals affirmed the trial court's order on the basis that the employees lacked standing to sue either the Governor or the Executive Director even though the Executive Director had not challenged the employees' standing to sue. Ainscough v. Owens, 77 P.3d 761 (Colo.App.2003). We reject the court of appeals' analysis.
Colorado has a tradition of conferring standing to a wide class of plaintiffs. In addition to the traditional legal controversies, our trial courts frequently decide general complaints challenging the legality of government activities and other cases involving intangible harm. Moreover, we have long recognized that state officials can be sued in their official capacities to challenge the validity of constitutional provisions, statutes, and administrative policies. This is especially true for the Governor who is defined by our Constitution as the supreme executive of the state. In this case, the Executive Director quite properly did not raise standing below because there are numerous cases allowing such suits.
The court of appeals cites no Colorado cases holding that plaintiffs adversely affected by administrative agency action lack standing to sue the agency and the state, and we know of none. Accordingly, we reverse the judgment of the court of appeals and remand the case with directions to return it to the trial court for further proceedings consistent with this opinion.
From the 1930s until 2001, the state allowed its employees to sign up for payroll deductions, including union dues. The state deducted the dues from employees' paychecks and forwarded the money collected to the employee associations. This process is known as "dues checkoff." Dues checkoff became a statutory right in 1973 with the passage of House Bill 1320. Ch. 119, sec. 1, § 26-1-4(1)(b) & (c), 1973 Colo. Sess. Laws 421, 421. House Bill 1320 directed the state official responsible for paying salaries and wages to deduct dues money from employees' paychecks whenever such a request was made by the employees and their associations. Id. In 1975, the General Assembly passed Senate Bill 466, which instructed the state controller to "regulate, approve, and review all payroll deductions for all state employees." Ch. 209, sec. 1, § 24-30-202(23)(a), 1975 Colo. Sess. Laws 801, 801. This mandatory regulation, however, exempted "deductions expressly authorized by statute," such as the dues checkoff deductions. Id.
In 1996, the General Assembly enacted Senate Bill 96-228, which reorganized the Department of Personnel. This bill repealed both of the statutes described above and replaced them with section 24-50.3-104(8). Ch. 273, sec. 26, § 24-50-104(1)(b) & (c), 1996 Colo. Sess. Laws 1493, 1507; Ch. 273, sec. 27, § 24-50.3-104(8), 1996 Colo. Sess. Laws 1493, 1507. This new subsection continued to require the Executive Director of the Personnel Department to "regulate, approve, and review all payroll deductions for all state employees," and continued to exempt deductions that were "expressly authorized by statute, or state-sponsored." Ch. 273, sec. 27, § 24-50.3-104(8), 1996 Colo. Sess. Laws 1493, 1508. Because the dues checkoff statute was repealed, however, it was no longer "expressly authorized by statute" and no longer exempt from review. Thus, under the new law, the employee associations no longer had a statutory right to automatic payroll deductions.
In 1998, House Bill 98-1312 repealed section 24-50.3-104(8) and reenacted it at its current location, section 24-50-104(8). Ch. 194, sec. 1, § 24-50-104, 1998 Colo. Sess. Laws 668, 675;;f Ch. 194, sec. 7, § 24-50.3-104, 1998 Colo. Sess. Laws 668, 677.
Despite the statutory changes affecting automatic payroll deductions, the program continued basically unchanged, and employee associations as well as many other entities continued to utilize the program until 2001. For example, in addition to union dues, payroll deductions were taken for recreation and athletic dues, athletic tickets, art and music subscriptions, charitable donations, and savings bonds.
In May of 2001, five years after the latest substantive statutory change, the Governor issued Executive Order D00701 regarding automatic payroll deductions. This Executive Order "defin[ed] the policy of the State regarding payroll deductions" saying that:
[S]tate government should not use taxpayer resources to duplicate services that can be provided by the private sector. Payroll deduction services should be used for administrative convenience to the State to reduce the burdens on state government in providing employment related services to its employees. Individuals who choose to deduct from their accounts for personal reasons have the ability to arrange for personal deductions through their private financial institutions.
Because section 24-50-104(8) does not define which deductions are "state-sponsored for all state employees" and thus statutorily entitled to automatic deductions, the Governor, in his Order, designated the Colorado Combined Campaign "as the only entity `state-sponsored for all state employees'" and thus, the only non-statutory program to be exempted from executive review and approval.1 The Governor's Order also directed the Executive Director to "conduct the statutorily required review of all requests for payroll deductions within the director's authority, consistent with the policy expressed in this Executive Order" and to "continue all deductions that are `state-sponsored for all state employees,' consistent with the designation contained in this Executive Order," Thus, only the Colorado Combined Campaign, and not employee association dues, was deductible.
In response to the Executive Order, the Executive Director of the Personnel Department ("Executive Director" or "Personnel Director") established a working group to study the matter and recommend action. On August 27, 2001, the Personnel Director issued a "Payroll Deduction Policy" to "provide[] interpretative guidance to state agencies and institutions of higher education regarding permissible payroll deductions for all state employees." In this document, the Personnel Director stated that:
State agencies and institutions of higher education shall not permit or process payroll deductions except as expressly authorized in this Policy. Payroll deductions are permitted only when:
1) required by federal law or state statute (e.g. tax withholdings, garnishments, court ordered child support);
2) authorized by federal or state statute (e.g. employee benefits, "eco passes," tax treatment elections);
3) expressly authorized for state sponsorship by executive order of the governor and available to all state employees (e.g. Colorado Combined Campaign); or
4) the deduction is for the purpose of facilitating the reimbursement of monies owed to the state from an employee (e.g. higher education tuition, uniforms, salary overpayments)
(emphasis added). The Policy concluded by stating that "[t]his policy shall be effective immediately, subject to a grace period for implementation of not later than November 1, 2001."
To recapitulate the history, employees had the right to automatic payroll deductions until 1996—first informally, and then by law. In 1996, this automatic right was eliminated and the Personnel Director was given authority to decide whether to allow the automatic deductions, but the state continued the payroll deductions unchanged. Finally, in 2001, the state employees' right to automatic deductions was largely eliminated when the Personnel Director cancelled all automatic deductions except those authorized by statute or executive order and those repaying money owed to the state.
On November 2, 2001, employees and their associations ("petitioners")...
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