Grossman v. Dean

• Decision Date: 23 October 2003
• Docket Number: No. 02CA1219.,02CA1219.
• Citation: 80 P.3d 952
• Parties: Dan GROSSMAN, as Colorado House Minority Leader, Plaintiff-Appellant, v. Doug DEAN, as Speaker of the House, Colorado General Assembly; Lola Spradley, as Colorado House Majority Leader; Bill Cadman, as Colorado State Representative; Lauri Clapp, as Colorado State Representative; Bill Crane, as Colorado State Representative; David Schultheis, as Colorado State Representative; and William D. Sinclair, as Colorado State Representative, Defendants-Appellees.
• Court: Colorado Court of Appeals

80 P.3d 952

Dan GROSSMAN, as Colorado House Minority Leader, Plaintiff-Appellant, v. Doug DEAN, as Speaker of the House, Colorado General Assembly; Lola Spradley, as Colorado House Majority Leader; Bill Cadman, as Colorado State Representative; Lauri Clapp, as Colorado State Representative; Bill Crane, as Colorado State Representative; David Schultheis, as Colorado State Representative; and William D. Sinclair, as Colorado State Representative, Defendants-Appellees.

No. 02CA1219.

Colorado Court of Appeals, Div. I.

October 23, 2003.

Ballard, Spahr, Andrews & Ingersoll, LLP, Michael E. Lindsay, A. Thomas Downey, Andrew C. Testerman, Denver, Colorado, for Plaintiff-Appellant.

Hale Hackstaff Friesen, LLP, Richard A. Westfall, Denver, Colorado, for Defendants-Appellees.

Schwarz, Semenoff, McNab & Bailey, P.C., Christopher M. Kamper, Denver, Colorado, for Amicus Curiae Common Cause of Colorado.

Jean E. Dubofsky, P.C., Jean E. Dubofsky, Boulder, Colorado, for Amicus Curiae Colorado League of Women Voters.

Opinion by Judge LOEB.

Plaintiff, Dan Grossman, as Colorado House Minority Leader, appeals the trial court's judgment dismissing his complaint against the Colorado General Assembly; Doug Dean, as Speaker of the House; Lola Spradley, as House Majority Leader; and Bill Cadman, Lauri Clapp, Bill Crane, David Schultheis, and William D. Sinclair, as Colorado State Representatives. We affirm in part, reverse in part, and remand for further proceedings.

Plaintiff sought a declaratory judgment that the use of a "supermotion" pursuant to House Rule 25(j)(1)(G) to kill a proposed bill without prior committee consideration on the merits of the bill violates the GAVEL Amendment, Colo. Const. art. V, § 20. He also sought a declaration that three specific uses of the supermotion in this way by representatives of the majority party in the House be deemed null and void.

Defendants filed a motion to dismiss for failure to state a claim under C.R.C.P. 12(b)(5). The trial court granted the motion, finding that the House Rule complied with the GAVEL amendment and that the relief requested, if granted, would constitute an injunction and would therefore improperly interfere with legislative functions. This appeal followed.

GAVEL, which stands for "Give A Vote to Every Legislator," is a group of amendments to the Colorado Constitution passed in 1988 by ballot initiative. The amendments were designed to correct certain perceived abuses in the legislative process. The GAVEL amendment at issue in this case states, in pertinent part:

Every measure referred to a committee of reference of either house shall be considered by the committee upon its merits, and no rule of either house shall deny the opportunity for consideration and vote by a committee of reference upon such a measure within appropriate deadlines. A motion that the committee report the measure favorably to the committee of the whole, with or without amendments, shall always be in order within appropriate deadlines.

Colo. Const. art. V, § 20.

House Rule 25(j)(1)(G), promulgated soon after the GAVEL amendments were passed, provides that a representative may make a motion out of order, commonly called a supermotion, that a committee report a measure favorably to the full House of Representatives, otherwise known as the committee of the whole. The House Rule states:

If a motion is made that a committee report a measure favorably to the committee of the whole ... when such measure is not in the order of business ... then such measure shall be considered by the committee upon its merits. If such motion fails to pass, the failure of such motion to pass shall have the same effect in all respects as the adoption of a motion that consideration of the measure be indefinitely postponed.

A motion that a committee report a measure favorably to the full House is a standard motion that a bill's supporter normally makes after a committee conducts a hearing on the bill. Such a motion becomes a supermotion under the GAVEL amendment and the House Rule when it is made out of order of the calendared business of the committee.

When a supermotion is made, the House Rule requires that the measure be "considered by the committee on its merits." If the supermotion fails to pass, the measure is deemed "indefinitely postponed," and the bill is not subsequently considered during the session; in other words, the bill is killed in committee.

The complaint alleges that, during the 2002 regular session, three bills sponsored by Democratic members of the House minority were referred to committee. At each committee meeting, members of the public were prepared to testify in favor of the proposed legislation. In each committee, a Republican member of the House majority who was opposed to the bill made a supermotion that the bill be reported favorably to the committee of the whole, but requested a "no" vote on the motion. In each instance, no committee discussion or debate occurred, and no testimony was received on the merits of the measure. A vote was then taken on each supermotion, and each failed along party lines. The failures had the effect of indefinitely postponing each bill.

One bill that was indefinitely postponed in this manner was HCR 1009, which was introduced and sponsored by plaintiff and supported by Colorado Common Cause, amicus curiae here. HCR 1009 would have placed a campaign finance reform proposal on the ballot for the 2002 election. The other two bills referenced in the complaint were sponsored by other members of the minority party.

Plaintiff concedes on appeal that, because the 2002 legislative session has ended, his second claim for relief, seeking a declaratory judgment that the permanent tabling of the three proposed bills be deemed null and void, is moot. However, he maintains that the trial court erred in dismissing his first claim for relief, seeking a declaratory judgment that the use of the supermotions here violated the GAVEL amendment and therefore was unconstitutional. We agree that dismissal was not warranted.

When reviewing a motion to dismiss under C.R.C.P. 12(b)(5), a court must accept all allegations of material fact as true and view the allegations in the complaint in the light most favorable to the plaintiff. We review a trial court's ruling on a motion to dismiss de novo. Pub. Serv. Co. v. Van Wyk, 27 P.3d 377 (Colo.2001).

I. Justiciability

Initially, we address defendants' contention that this case is not justiciable for three reasons: (1) plaintiff lacks standing; (2) the case is moot; and (3) the claims improperly interfere with the activities of the legislature and therefore violate the political question doctrine. We disagree with each contention.

A. Standing

First, we address defendants' argument that plaintiff lacks standing to bring this action.

Standing is a jurisdictional prerequisite that requires a named plaintiff to bring suit only to protect a cognizable interest. Friends of Black Forest Reg'l Park, Inc. v. Bd. of County Comm'rs, 80 P.3d 871, 2003 WL 1923823 (Colo.App. No. 01CA2253, Apr. 24, 2003). Whether a plaintiff has standing is determined as of the time the action is filed. See Friends of Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 709, 145 L.Ed.2d 610 (2000)

; cf. Miller v. Accelerated Bureau of Collections, Inc., 932 P.2d 824 (Colo.App.1996)(plaintiff not having standing at the outset of litigation may later acquire it; standing would then relate back to commencement of proceeding).

To determine standing, we must consider (1) whether the plaintiff was injured in fact, and (2) whether the injury was to a legally protected right. Romer v. Colo. Gen. Assembly, 810 P.2d 215, 218 (Colo.1991).

Injury in fact may be proved by showing that the action complained of has caused or has threatened to cause injury. See Romer v. Colo. Gen. Assembly, supra. The requirement that the injury be to a legally protected interest "is grounded on prudential considerations of judicial self restraint." Romer v. Colo. Gen. Assembly, 810 P.2d at 218 (quoting Colo. Gen. Assembly v. Lamm, 700 P.2d 508, 516 (Colo.1985)(Lamm I)). The question is whether the plaintiff is protected by law from the alleged injury; this determination is "inextricably tied" to the merits of the dispute. See Lamm I, supra.

Initially, we disagree with defendants that plaintiff lacks standing because he is no longer in the House of Representatives. Plaintiff was a member of the House when the complaint was filed, and his standing to bring this action is determined as of that time. See Friends of Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., supra.

Here, plaintiff has adequately alleged a legally protected interest. GAVEL specifically creates a legally protected right for each legislator to have a committee of reference consider and vote on a bill on its merits. Plaintiff's allegation that the committee to which his bill was assigned was deprived of the opportunity to consider that bill on its merits sufficiently alleges an injury to a legally protected interest. See Romer v. Colo. Gen. Assembly, supra

(governor alleged an injury in fact to his legally protected interest in his constitutional power to veto provisions of an appropriations bill); Maurer v. Young Life, 779 P.2d 1317 (Colo.1989)(legally protected interest is recognized where created by statutory or constitutional provision).

Plaintiff has also adequately alleged injury in fact because, as a member of the House and as the sponsoring legislator of HCR 1009 when the suit was filed, he asserts that he was deprived of the opportunity to have his bill considered on its merits and voted on by the committee of reference, as mandated by the GAVEL amendment. See Colo. Gen. Assembly v. Lamm, 704 P.2d 1371 (Colo.1985)(Lamm II)

(legislature suffered an injury in fact as a result of governor's exercise of his line item veto power); Lamm I, supra (legislature had standing to bring suit...