Rocky Mountain Gun Owners v. Polis, Court of Appeals No. 20CA0997

Docket NºCourt of Appeals No. 20CA0997
Citation504 P.3d 316, 2021 COA 137
Case DateNovember 10, 2021
CourtCourt of Appeals of Colorado

504 P.3d 316
2021 COA 137

ROCKY MOUNTAIN GUN OWNERS, a Colorado nonprofit corporation; Representative Patrick Neville; Representative Lori Saine, House Minority Leader; and Representative Dave Williams, Plaintiffs-Appellants and Cross-Appellees,
Jared S. POLIS, in his official capacity as Governor of the State of Colorado, Defendant-Appellee and Cross-Appellant.

Court of Appeals No. 20CA0997

Colorado Court of Appeals, Division IV.

Announced November 10, 2021

Arrington Law Office, Barry K. Arrington, Denver, Colorado, for Plaintiffs-Appellants and Cross-Appellees

Philip J. Weiser, Attorney General, Eric R. Olson, Solicitor General, Grant T. Sullivan, Assistant Solicitor General, Denver, Colorado, for Defendant-Appellee and Cross-Appellant

Opinion by JUDGE J. JONES

¶ 1 Rocky Mountain Gun Owners (RMGO) and three members of the Colorado House of Representatives challenge the enactment of House Bill 19-1177, a so-called "Red Flag law," now codified at sections 13-14.5-101 to - 114, C.R.S. 2021. The most well-known aspect of that law is the provision allowing a court to issue a "temporary extreme risk protection order" requiring a person to surrender all firearms, or allowing law enforcement personnel to take the person's firearms, if the court finds, by a preponderance of the evidence, that the person "poses a significant risk of causing personal injury to self or others in the near future" by virtue of purchasing, possessing, or receiving a firearm or having a firearm in his or her custody or control. §§ 13-14.5-103(3), -108.

¶ 2 RMGO and Representatives Patrick Neville (the House Minority Leader), Lori Saine, and Dave Williams filed suit alleging that the House violated article V, section 22 of the Colorado Constitution, commonly referred to as the "Reading Clause," by failing to read the full text of House Bill 19-1177 after Representatives Saine and Williams separately requested such a reading.

¶ 3 The district court granted the Governor's motion to dismiss the complaint. The court ruled that the plaintiffs’ challenge under the Reading Clause presents a nonjusticiable political question, meaning that the court lacked subject matter jurisdiction. That ruling was sufficient to justify dismissal of the complaint, but the court went on to hold that (1) none of the plaintiffs have taxpayer or "individual" standing but (2) Representatives Saine and Williams have "legislative standing."1

¶ 4 The plaintiffs appeal the dismissal of their complaint. The Governor cross-appeals the district court's ruling that Representatives Saine and Williams have standing.

¶ 5 We hold, largely on the basis of the Colorado Supreme Court's recent decision in Markwell v. Cooke , 2021 CO 17, 482 P.3d 422, that the plaintiffs’ challenge to the Red Flag law under the Reading Clause doesn't present a nonjusticiable political question. We also hold that while none of the plaintiffs have taxpayer standing, Representatives Saine and Williams have standing because they have sufficiently alleged an injury in fact to a legally protected interest. We therefore affirm the judgment in part, reverse it in part, and remand the case to the district court for further proceedings.

504 P.3d 318

I. Background

¶ 6 The Governor moved for dismissal under both C.R.C.P. 12(b)(1) and (b)(5). But even though a motion under Rule 12(b)(1) differs from one under Rule 12(b)(5) in that a court may consider evidence outside the complaint in ruling on the motion, need not accept the allegations in the plaintiff's complaint as true, and may make factual findings in ruling on the motion, Medina v. State , 35 P.3d 443, 452 (Colo. 2001), none of the parties submitted any evidence in support of their respective positions. Rather, the Governor treated the plaintiffs’ factual allegations as true, as did the district court. Therefore, we will as well.

¶ 7 House Bill 19-1177 was introduced in the House on February 14, 2019. On March 1, 2019, while the House was considering the bill on second reading, Representative Williams requested that bill be read in full. The Chair of the Committee of the Whole denied his request. Representative Saine also requested that the bill be read in full while it was being considered on second reading. The Chair said her request "will not be considered." The bill was never read in full in the House.

¶ 8 The General Assembly passed the bill on April 1, 2019, and the Governor signed it into law on April 12, 2019.

¶ 9 The plaintiffs filed their complaint on May 2, 2019. As noted, they challenge the Red Flag law under the Reading Clause of the Colorado Constitution. The Reading Clause provides as follows:

Every bill shall be read by title when introduced, and at length on two different days in each house; provided, however, any reading at length may be dispensed with upon unanimous consent of the members present . All substantial amendments made thereto shall be printed for the use of the members before the final vote is taken on the bill, and no bill shall become a law except by a vote of the majority of all members elected to each house taken on two separate days in each house, nor unless upon its final passage the vote be taken by ayes and noes and the names of those voting be entered on the journal.

Colo. Const. art. V, § 22 (emphasis added).

¶ 10 The plaintiffs also allege that the House violated House Rule 27(b), which says,

Every bill shall be read by title when introduced, which shall constitute first reading, and at length on two different days prior to its being finally passed. Reading before the House sitting as committee of the whole shall constitute second reading. Unless a member shall request the reading of a bill in full when it is being considered on second or on third reading , it shall be read by title only, and the unanimous consent of the members present to dispense with the reading of the bill at length shall be presumed.

(Emphasis added.) The plaintiffs allege that Representatives Saine and Williams requested that the bill be read in full "when it [was] being considered on second ... reading."

II. Analysis

¶ 11 We first consider whether the plaintiffs’ challenge to the Red Flag law under article V, section 22 raises a nonjusticiable political question. After concluding that it does not, we turn to the issue of standing. As there are, at this juncture, no disputed facts (and no findings of fact), and the issues present questions of law, we review the district court's judgment de novo. Markwell , ¶ 20 (interpretation of the Reading Clause is a legal issue subject to de novo review); Barber v. Ritter , 196 P.3d 238, 245 (Colo. 2008) ("Whether a plaintiff has standing to sue is a question of law that we review de novo."); see Schroder v. Bush , 263 F.3d 1169, 1173 (10th Cir. 2001) (the application of the political question doctrine is a legal question that the appellate court reviews de novo).

A. Political Question

¶ 12 The district court's ruling that the plaintiffs’ Reading Clause challenge to the Red Flag law presents a nonjusticiable political question cannot stand in light of the supreme court's subsequent decision in Markwell . In that case, three state senators challenged the passage of a bill under the Reading Clause. After one of those senators

504 P.3d 319

asked that the bill be read at length, Senate staff uploaded the bill to several computers and those computers read different portions of the bill simultaneously at high speed. Several senators objected to that procedure, to no avail. The computers "churn[ed] out unintelligible sounds" for four hours. Markwell , ¶¶ 6-8.

¶ 13 The three senators sought and obtained temporary and preliminary injunctions in district court. In granting those injunctions, the district court rejected the responding Senate officers’ argument that the senators’ Reading Clause challenge presented a nonjusticiable political question. On C.A.R. 50 review, the supreme court affirmed. Though the court split four to three on the question whether the Reading Clause had been violated (with the majority deciding that it had), all seven justices agreed that the Reading Clause challenge didn't present a nonjusticiable political question. Id. at ¶¶ 23-31 (majority opinion); id. at ¶ 51 (Márquez, J., dissenting); id. at ¶ 75 (Hood, J., dissenting). The majority reasoned that "the issue of whether the legislature complied with the reading requirement ... requires constitutional interpretation and is thus a prime candidate for judicial resolution," id. at ¶ 23, relying on a number of the supreme court's past decisions, including Colorado Common Cause v. Bledsoe , 810 P.2d 201 (Colo. 1991) (involving a challenge under the GAVEL amendment, Colo. Const. art. V, § 22a ), and In re House Bill No. 250 , 26 Colo. 234, 57 P. 49 (1899) (involving a challenge under the printing requirement of article V, section 22 ). See also Mass. Mut. Life Ins. Co. v. Colo. Loan & Tr. Co. , 20 Colo. 1, 4-5, 36 P. 793, 794 (1894) (addressing the merits of an article V, section 22 reading requirement claim); Grossman v. Dean , 80 P.3d 952, 961 (Colo. App. 2003) (holding that a challenge under the GAVEL amendment didn't present a nonjusticiable political question; the challenge called for the court "to interpret a constitutional amendment and to determine whether the application of the...

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