Norton v. Rocky Mountain Planned Parenthood, Inc.

• Citation: 409 P.3d 331
• Decision Date: 22 January 2018
• Docket Number: Supreme Court Case No. 16SC112
• Court: Supreme Court of Colorado
• Parties: Jane E. NORTON, Petitioner v. ROCKY MOUNTAIN PLANNED PARENTHOOD, INC. a/k/a Planned Parenthood of the Rocky Mountains, Inc., a Colorado nonprofit corporation; John W. Hickenlooper, in his official capacity as Governor of the State of Colorado; Susan E. Birch, in her official capacity as Executive Director of the Colorado Department of Health Care Policy and Financing ; and Larry Wolk, in his official capacity as Executive Director of the Colorado Department of Public Health & Environment, Respondents

409 P.3d 331

Jane E. NORTON, Petitioner

v.ROCKY MOUNTAIN PLANNED PARENTHOOD, INC. a/k/a Planned Parenthood of the Rocky Mountains, Inc., a Colorado nonprofit corporation; John W. Hickenlooper, in his official capacity as Governor of the State of Colorado; Susan E. Birch, in her official capacity as Executive Director of the Colorado Department of Health Care Policy and Financing ; and Larry Wolk, in his official capacity as Executive Director of the Colorado Department of Public Health & Environment, Respondents

Supreme Court Case No. 16SC112

Supreme Court of Colorado.

January 22, 2018

Attorneys for Petitioner: Michael J. Norton, Greenwood Village, Colorado, The Law Office of Natalie L. Decker, LLC, Natalie L. Decker, Littleton, Colorado.

Attorneys for Respondent Rocky Mountain Planned Parenthood, Inc.: Heizer Paul LLP, Kevin C. Paul, Cynthia A. Coleman, Denver, Colorado.

Attorneys for Respondents John W. Hickenlooper, Susan E. Birch, and Larry Wolk: Cynthia H. Coffman, Attorney General, W. Eric Kuhn, Senior Assistant Attorney General, Denver, Colorado.

Attorneys for Amici Curiae Colorado Family Action, Genesis Family Church, Kingdom Way Ministries, Summit Ministries, and Christina Darlington: SDG Law LLC, David M. Hyams, Denver, Colorado.

Attorneys for Amici Curiae Faith and Freedom Coalition of Colorado, Family Talk, Dr. James Dobson, and the Colson Center for Christian Worldview: MRDLaw, Michael Francisco, Denver, Colorado.

En Banc

CHIEF JUSTICE RICE delivered the Opinion of the Court.

¶1 In this case, we consider whether a complaint alleging a violation of article V, section 50 of the Colorado Constitution (" section 50") based solely on a theory of subsidization states a claim for relief sufficient to overcome a motion to dismiss pursuant to C.R.C.P. 12(b)(5). We hold that it does not. Instead we hold that to state a claim for relief under section 50, a complaint must allege that the State made a payment to a person or entity—whether directly to that person or entity, or indirectly through an intermediary—for the purpose of compensating them for performing an abortion and that such an abortion was actually performed.

I. Facts and Procedural History

¶2 Petitioner Jane E. Norton sued Rocky Mountain Planned Parenthood, Inc. ("RMPP"), Governor John W. Hickenlooper, the Executive Director of the Colorado Department of Health Care Policy and Financing, and the Executive Director of the Colorado Department of Public Health and Environment ("CDPHE"), for violating section 50. Section 50 provides, "No public funds shall be used by the State of Colorado, its agencies or political subdivisions to pay or otherwise reimburse, either directly or indirectly, any person, agency or facility for the performance of any induced abortion...."

¶3 Prior to filing this suit as a private citizen, Norton had served as Executive Director of CDPHE. In 2001, while serving in that role, Norton hired an accounting firm to determine whether RMPP was "separately incorporated, maintain[ed] separate facilities, and maintain[ed] financial records which demonstrate[d] financial independence" from Planned Parenthood of the Rocky Mountains Services Corporation ("Services Corp."), an organization that offers abortion services. The accounting firm determined that RMPP was "subsidizing the rent for Services Corp., an affiliate that performs abortions." From this information, Norton concluded that whenever CDPHE provided funding to RMPP, for example by contracting with RMPP to perform breast and cervical cancer screenings, it was violating section 50. As a result, Norton terminated the State's contractual relationship with RMPP and ceased all taxpayer funding of that organization. In 2009, after Norton had left CDPHE, the State resumed making payments to RMPP, prompting Norton to file this lawsuit in which she sought declaratory and injunctive relief against the State officials and pursued a claim of unjust enrichment against RMPP.

¶4 Norton alleged in her complaint that the State officials violated section 50 by paying approximately $14 million¹ of public funds to RMPP for non-abortion medical services. Specifically, Norton's complaint alleged that, in making these payments, the State subsidized the abortion operations of Services Corp., because giving state funds to RMPP allowed RMPP to charge below-market rent to Services Corp. for the use of RMPP's facilities. Norton did not allege that the State paid public funds to RMPP or to Services Corp. to compensate either organization for actually performing abortions.

¶5 The trial court dismissed Norton's complaint under C.R.C.P. 12(b)(5) for failure to state a claim, concluding that Norton did not allege "any specific abortion that is being supported with [state funds]." The trial court reasoned that, in order to fall within the scope of section 50, a payment made by the State, whether directly or indirectly, to a health care provider must be connected to the performance of an abortion.

¶6 The court of appeals affirmed, holding that the language of section 50"requires that the purpose for which the State makes the payment be analyzed." Norton v. Rocky Mountain Planned Parenthood, Inc., 2016 COA 3, ¶ 17, –––P.3d ––––. The court of appeals concluded that if it were to adopt Norton's interpretation of "directly or indirectly" to refer to how the funds ultimately are used by the payee, it would lead to an absurd result. Id. at ¶ 24. For example, the State pays salaries to its employees. The court of appeals reasoned that if one of those employees donated money to Services Corp., under Norton's interpretation, the payment of salary to the employee would be an indirect payment for an induced abortion and would violate section 50. Id. The court of appeals held that this result cannot have been intended by the electorate when it enacted section 50 because the connection to an induced abortion is too attenuated from the reason for the initial payment of salary to the employee. Id. The court of appeals concluded that because, in this example, the State paid the employee for services other than performing induced abortions, section 50 was not violated. Id. The court of appeals held that the same is true for the State paying RMPP for services other than performing induced abortions. Id. at ¶ 25. Accordingly, the court of appeals concluded that, because Norton did not allege that the State made payments to RMPP or Services Corp. for the purpose of reimbursing them for performing abortion services, the trial court properly dismissed the complaint. Id. at ¶ 26. We granted certiorari.²

II. Standard of Review

¶7 We review a C.R.C.P. 12(b)(5) motion to dismiss de novo and apply the same standards as the trial court. Denver Post Corp. v. Ritter, 255 P.3d 1083, 1088 (Colo. 2011). We accept all factual allegations in the complaint as true, viewing them in the light most favorable to the plaintiff, but we are not required to accept bare legal conclusions as true. Id. We will uphold the grant of a C.R.C.P. 12(b)(5) motion only when the plaintiff's factual allegations do not, as a matter of law, support the claim for relief. Id. When considering a motion to dismiss for failure to state a claim, we may consider the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference, and matters proper for judicial notice. Id.

¶8 The interpretation of a constitutional provision is a question of law that we review de novo. Gessler v. Colo. Common Cause, 2014 CO 44, ¶ 7, 327 P.3d 232, 235. "When interpreting a constitutional amendment adopted by citizen's initiative, we ‘give effect to the electorate's intent in enacting the amendment.’ " Dwyer v. State, 2015 CO 58, ¶ 19, 357 P.3d 185, 191 (quoting Colo. Ethics Watch v. Senate Majority Fund, LLC, 2012 CO 12, ¶ 20, 269 P.3d 1248, 1253 ). To this end, words used in the Constitution are to be given "the natural and popular meaning usually understood by the people who adopted them." Urbish v. Lamm, 761 P.2d 756, 760 (Colo. 1988). If the language of a constitutional provision is clear and unambiguous, we will enforce it as written. Colo. Ethics Watch, ¶ 20, 269 P.3d at 1254.

III. Analysis

¶9 Norton argues that her complaint alleged a violation of section 50 by stating that (1) the State made payments to RMPP using public funds; (2) RMPP and Services Corp. are "conjoined, interrelated, and integrated affiliates"; and (3) Services Corp. offers abortion services. Norton thus contends that, regardless of what the payments are for, when the State pays any public funds to RMPP, it "indirectly" pays for the abortion operations of Services Corp. in violation of section 50. Under Norton's theory, when the State pays RMPP for any service, RMPP earns a profit, making it possible for RMPP to subsidize Services Corp. by charging below-market rent and sharing medical staff and supplies.

¶10 We conclude that section 50 does not support a claim alleging a violation based on such a theory of subsidization. We reach this conclusion by reviewing section 50's plain language, focusing in particular on the terms "pay for" and "indirectly." Consistent with the unambiguous meaning of those terms, we hold that, to state a claim for relief under section 50, a plaintiff must allege that the State paid or reimbursed some entity, either directly or indirectly (i.e., through an intermediary), in exchange for that entity's performance of an induced abortion. Applying our holding, we determine that, because Norton did not allege that the State paid any entity for actually performing abortions, she did not state a claim for relief under section 50 and the trial court properly dismissed her complaint.

A. Section 50 Prohibits Only State Payments for a Specific Service

¶11 Section 50 prohibits the State from spending public funds "to pay or otherwise reimburse, either directly or indirectly, any person, agency or facility for the performance of any induced abortion." (Emphasis added.) Norton argues that...