Romer v. Colorado General Assembly, 90SC36

• Decision Date: 15 April 1991
• Docket Number: No. 90SC36,90SC36
• Citation: 810 P.2d 215
• Parties: Roy ROMER, in his official capacity as Governor of the State of Colorado, Petitioner, v. COLORADO GENERAL ASSEMBLY; Carl "Bev" Bledsoe, in his official capacity as Speaker of the House of Representatives; and Ted Strickland, in his official capacity as President of the Senate, Respondents.
• Court: Colorado Supreme Court

Page 215

810 P.2d 215

Roy ROMER, in his official capacity as Governor of the State of Colorado, Petitioner, v. COLORADO GENERAL ASSEMBLY; Carl "Bev" Bledsoe, in his official capacity as Speaker of the House of Representatives; and Ted Strickland, in his official capacity as President of the Senate, Respondents.

No. 90SC36.

Supreme Court of Colorado,

En Banc.

April 15, 1991.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Maurice G. Knaizer, Deputy Atty. Gen., Denver, for petitioner.

Welborn Dufford Brown & Tooley, P.C., Philip G. Dufford, Gregory A. Ruegsegger, Denver, for respondents.

Justice ERICKSON delivered the Opinion of the Court.

We granted certiorari pursuant to C.A.R. 50 to review an order of the district court dismissing a complaint filed by the Governor of Colorado, the Honorable Roy Romer, against the General Assembly, Carl "Bev" Bledsoe in his official capacity as Speaker of the House of Representatives, and Ted Strickland in his official capacity as President of the Senate. The district court held that the speech or debate clause, Colo. Const. art. V, § 16, granted absolute immunity to members of the General Assembly. We affirm in part and reverse in part.

In April 1989, the Colorado General Assembly enacted the 1989-90 appropriations bill, otherwise known as the "long bill," to provide expenditures for the executive, legislative, and judicial branches of state government. Ch. 1, sec. 1, 1989 Colo.Sess.Laws 1. Besides the normal appropriations, the General Assembly included headnotes and footnotes that sought to restrict or explain the use of the relevant appropriation.

Governor Roy Romer approved the long bill on April 26, 1989, but attached a letter to the General Assembly claiming eight of the headnotes and forty-one of the footnotes violated either the separation of powers clause of the Colorado Constitution, article III, by infringing on the executive function, or the prohibition against substantive legislation included in the long bill. Colo. Const. art. V, § 32. The governor purported to veto those items he contended were unconstitutional by lining them out pursuant to his power to disapprove distinct items in the appropriations bill under article IV, section 12.

Colorado's constitution grants the governor the power to disapprove any distinct item in the long bill, and provides that the legislature can only override that veto by the normal override process of a two-thirds vote in each house, art. IV, § 11. The General Assembly, however, through the president of the Senate and the speaker of the House, sent a letter back to the governor claiming his vetoes were improper and had no legal effect. The General Assembly also stated that the disputed provisions would be treated as duly enacted law until repealed or found unconstitutional by a court of competent jurisdiction. ¹

On May 25, 1989, the governor instructed the executive departments to ignore the headnotes and footnotes unless he indicated otherwise. On June 21, 1989, the General Assembly sent another letter to Governor Romer restating its position that the vetoes were invalid, and encouraging the governor to either "exercise a valid veto of an entire item of appropriation or seek vindication of your view in the appropriate court." The governor filed this declaratory judgment action in Denver district court on September 1, 1989.

In his complaint, the governor asserted that first, the headnotes and footnotes were unconstitutional; second, the vetoes of those notes were valid; and third, that in ignoring those vetoes, the legislature usurped an executive function, violating separation of powers. The General Assembly moved to dismiss, contending the speech or debate clause in article V, section 16, of the Colorado Constitution afforded it absolute immunity from suit, and that the vetoes were void as a matter of law, so that the governor's complaint failed to state a claim for relief. That motion was granted by the district court in December 1989 based solely on its conclusion that the legislature was absolutely immune from suit. The court did not address whether the vetoes were valid or the provisions unconstitutional. The governor filed a notice of appeal in the court of appeals, and we accepted jurisdiction by certiorari pursuant to C.A.R. 50 (before judgment). We stated the issues as whether the governor could bring an action against the legislature for ignoring the governor's vetoes, and second, whether the speech or debate clause of the Colorado Constitution provided the General Assembly and its members with absolute immunity.

I

We have previously addressed whether one branch of government has standing to bring an action against another branch in Colorado General Assembly v. Lamm, 700 P.2d 508 (Colo.1985) (Lamm I ), and Colorado General Assembly v. Lamm, 704 P.2d 1371 (Colo.1985) (Lamm II ). In Lamm I, we said "[w]hether a particular plaintiff has standing to invoke the jurisdiction of the courts is a preliminary inquiry designed to ensure that the judicial power is exercised only in the context of a case or controversy." 700 P.2d at 515-16. Whether a plaintiff has standing requires a determination of (1) whether the plaintiff was injured in fact, and (2) whether the injury was to a legally protected right. Id. at 516 (quoting Wimberly v. Ettenberg, 194 Colo. 163, 168, 570 P.2d 535, 539 (1977)). Injury in fact may be proven by showing that "the action complained of has caused or has threatened to cause injury." Id.; see also Community Tele-Communications, Inc. v. Heather Corp., 677 P.2d 330 (Colo.1984). The injury in fact requirement is a constitutional requirement, since judicial power granted by article VI of the Colorado Constitution may be exercised only if a true controversy exists. Lamm I, 700 P.2d at 516. See Conrad v. City of Denver, 656 P.2d 662 (Colo.1982). The requirement that the injury be to a legally protected interest "is grounded on prudential considerations of judicial self restraint." Lamm II, 704 P.2d at 1377; see Lamm I, 700 P.2d at 516.

Lamm I held that the General Assembly had standing to bring an action against the governor to challenge a particular construction given certain statutes by the governor resulting in transfers of funds between departments of the executive branch. We said an allegation that the challenged transfers impermissibly infringed on the General Assembly's power of appropriation granted by the constitution satisfied the requirement that an injury in fact had occurred to a legally protected interest. 700 P.2d at 516. Lamm II held that the legislature had standing to challenge the constitutional validity of gubernatorial vetoes. 704 P.2d at 1377. We found that an injury in fact had occurred since an improper veto infringed on the legislature's power of appropriation and violated the constitutional requirement of separation of powers between the executive and the legislative branches. Id. We rejected the governor's argument that the legislature had no legally protected interest at stake:

In order to protect its ability to enact legislation by majority vote, it is essential that the legislature be able to obtain a determination whether a purported veto is within the governor's power, and therefore valid, or outside the ambit of that power, and therefore an intrusion upon the legislative domain.

Id. at 1378. An invalid veto, permitted to stand unchallenged, "would cause injury in fact to the legislature's legally protected right and power to make appropriations by majority vote." Id. In this case, it is the governor who seeks standing to challenge what essentially amounts to an allegedly impermissible legislative override of the governor's veto of items in the long bill.

All appropriations derive from an act passed by both houses of the General Assembly. See Colo. Const. art. V, §§ 17, 32, & 33. That act is then sent to the governor, who has the constitutional duty to either approve the act or return it, unapproved and with his objections, to the house in which it originated. ² See Colo. Const. art. IV, § 11. In Colorado, the governor is given the power in article IV, section 12, to veto distinct items in the long bill without having to veto the entire act. Once vetoed, those items may only be reinstated by a valid override or by a judicial declaration that the veto was invalid. Colo. Const. art. IV, § 11; Colorado General Assembly v. Lamm, 704 P.2d at 1377-79. In this case, however, the legislature responded to the governor's purported veto by declaring the vetoes invalid and expressly stating that "[u]ntil the headnotes and footnotes in question are repealed or declared unconstitutional by a court of competent jurisdiction, they should be treated as duly enacted law." That letter was published, by order of the General Assembly, in the 1989 sessions law in conjunction with the long bill. Ch. 1, sec. 1, 1989 Colo.Sess.Laws 131-32.

Rather than attempt an override or seek a judicial determination of the validity of the vetoes, the General Assembly simply chose to ignore the governor's action. The injury in fact to a legally protected interest is not in regard to whatever substantive effect the footnotes and headnotes had on the executive's power to administer, but instead relates to the executive's constitutional power and duty to either approve or veto legislative acts.

In Government of the Virgin Islands v. Eleventh Legislature, 536 F.2d 34 (3d Cir.1976), the court of appeals held that the governor had standing to maintain a declaratory judgment action against the legislature to seek a judicial determination of the validity of a legislative override of the governor's item veto. Id. at 36. "We conclude that the Governor has 'alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for...