Wimberly v. Ettenberg

Decision Date11 October 1977
Docket NumberNo. 27415,27415
PartiesJohn WIMBERLY, Joe Wilson, Patrick Oneil, Albert Oneil, Larry Baker, Kenneth Baker, Adrian Cochran, and Mel Northington, Petitioners-Appellees, v. Irving ETTENBERG, Judge of the County Court in and for the City and County ofDenver, State of Colorado, Respondent-Appellant.
CourtColorado Supreme Court

Hoffman, McDermott & Hoffman, Gene M. Hoffman, Denver, for petitioners-appellees.

R. Dale Tooley, Dist. Atty., Thomas P. Casey, Chief App. Deputy Dist. Atty., Denver, for respondent-appellant.

ERICKSON, Justice.

The central issue on appeal is whether petitioner had standing to obtain an injunctive order of the Denver district court which prohibited a judge of the county court from releasing defendants on a particular type of bail. We reverse and remand with directions to dismiss the complaint.

The complaint, filed by a number of bail bondsmen, sought relief under the provisions of C.R.C.P. 65 and 106. The respondent in this case is a judge of the county court for the City and County of Denver who had the responsibility of setting the terms, conditions, and amount of bail for criminal defendants who appeared before him for the advisement of rights. On or about November 1, 1973, the respondent judge implemented a pre-trial release program in the county court in which certain defendants were allowed to deposit a sum of cash equal to 10% of the total amount of their bail as a condition for pre-trial release. See section 16-4-104, C.R.S. 1973.

More than two years after the program was instituted by the county court, suit was filed in the district court and an injunctive order issued prohibiting the continuation of the county court's pre-trial release program.

The petitioning bail bondsmen are regulated by the State Insurance Commission and pay license fees pursuant to sections 12-7-101, et seq., C.R.S. 1973. The bondsmen are permitted by section 12-7-108, C.R.S. 1973, to charge a premium or fee not to exceed 10% of the amount of the bail bond. The bail bondsmen claim that they were driven to the brink of bankruptcy by the program instituted by the county judge and that they were, therefore, entitled to relief.

Appellant's main allegation of error concerns the trial court's failure to dismiss this case for lack of standing. We take this opportunity to review and rule with respect to the standing doctrine.

A brief consideration of precedent will facilitate understanding of the rule we adopt here. The United States Supreme Court, in Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U.S. 118, 59 S.Ct. 366, 83 L.Ed. 543 (1938), held that the basic requirements of standing were injury in fact to a legal right protected either by statute or constitutional provision. In Tennessee Electric, eighteen corporations which generated and distributed electricity brought suit to restrain the T.V.A. from generating electricity pursuant to Congressional Act. The Supreme Court dismissed the action for lack of standing, holding that mere injury from competition by a government agency was insufficient to confer standing:

"The appellants invoke the doctrine that one threatened with direct and special injury by the act of an agent of the government which, but for statutory authority for its performance, would be a violation of his legal rights, may challenge the validity of the statute in a suit against the agent. The principle is without application unless the right invaded is a legal right one of property, one arising out of contract, one protected against tortious invasion, or one founded on a statute which confers a privilege. . . . "

An example of the approach to standing taken in the federal courts under Tennessee Electric Power Co. v. Tennessee Valley Authority, supra, is Ex-Cell-O Corporation v. City of Chicago, 115 F.2d 627 (7th Cir. 1940). Ex-Cell-O Corporation brought suit against the City of Chicago to obtain a declaratory judgment that a Chicago ordinance did not prohibit the use of paper milk containers, or, alternatively, to declare the ordinance to be invalid. The court held that the plaintiff lacked standing to challenge the ordinance, because the injury suffered was not a direct result of government action:

"(T)he ordinance complained of or the administrative acts of defendants in interpretation and administration thereof, in no wise forbid such manufacture and sale. The act, as interpreted by defendants, is asserted by them to forbid the use of paper milk bottles in Chicago. Defendant is free to manufacture and to sell such bottles wherever it may desire, even in Chicago. Obviously, few, if any, persons will purchase them for use there, but that result we deem incidental, consequential, and indirect. Were plaintiff forbidden to manufacture and sell paper milk bottles in Chicago, the effect upon its business would be direct and inevitable.

"Thus it is apparent that inevitable financial pecuniary damage is not the test of the sufficiency of plaintiff's interest. . . . Rather the whole question is whether the damage claimed springs directly to plaintiff from defendants. If it is incidental, if it is indirect, defendants may not invoke the court's jurisdiction."

The standing tests expressed in the above cases no longer are employed in the federal courts. The United States Supreme Court rejected these earlier standing formulas and announced a two-pronged approach in Association of Data Processing Service Organizations Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). The two requirements which must be satisfied are: (1) the plaintiff must allege that the challenged action has caused him injury in fact, and (2) the interest sought to be protected must arguably be within the zone of interest to be protected or regulated by the statute in question. The first is constitutionally mandated by Article III's restriction of court jurisdiction to "case" or "controversy." U.S.Const., Art. III. The second is a prudential rule of standing based on judicial self-restraint.

In Data Processing, the Supreme Court held that the standing inquiry was preliminary to and separate from the decision on the merits. The "legal interest" approach of Tennessee Electric, supra, was, therefore, inappropriate:

"The 'legal interest' test goes to the merits. The question of standing is different. It concerns, apart from the 'case' or 'controversy' test, the question whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question. . . . "

The Supreme Court of the United States has reaffirmed the validity of the tests established in Data Processing in its most recent standing decision. Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976). The plaintiffs in Eastern Kentucky lacked standing because they failed to satisfy the requirement of injury in fact. In Eastern Kentucky, the injury in fact inquiry was divided into two parts: Federal courts must determine, first, whether the action complained of has caused or...

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