Wimberly v. Ettenberg, No. 27415

• Docket Nº: No. 27415
• Citation: 570 P.2d 535, 194 Colo. 163
• Case Date: October 11, 1977
• Court: Supreme Court of Colorado

Page 535

570 P.2d 535 194 Colo. 163 John 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. No. 27415. Supreme Court of Colorado, En Banc. Oct. 11, 1977.

Page 536

[194 Colo. 164] 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.

[194 Colo. 165] 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

Page 537

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:

[194 Colo. 166] "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...