DISTRICT COURT, DENVER COUNTY, COLORADO
Court Address: 1437 Bannock St., Room 256
Denver, CO 80202 ▲ COURT USE ONLY ▲
Plaintiffs: JAMES LARUE; SUZANNE T. LARUE;
INTERFAITH ALLIANCE OF COLORADO; RABBI JOEL
R. SCHWARTZMAN; REV. MALCOLM HIMSCHOOT; Case Number: 2011CV4424
KEVIN LEUNG; CHRISTIAN MOREAU; MARITZA
CARRERA; SUSAN MCMAHON
vs. Courtroom: 259
Defendants: COLORADO BOARD OF EDUCATION;
COLORADO DEPARTMENT OF EDUCATION;
DOUGLAS COUNTY BOARD OF EDUCATION;
DOUGLAS COUNTY SCHOOL DISTRICT CONSOLIDATED
Intervenors: FLORENCE DOYLE; DERRICK DOYLE;
ALEXANDRA DOYLE; DONOVAN DOYLE; DIANA
OAKLEY; et al. __________________________
AND
Case Number: 2011CV4427
Plaintiffs: TAXPAYERS FOR PUBLIC EDUCATION;
CINDRA S. BARNARD; MASON S. BARNARD Courtroom: 259
vs.
Defendants: DOUGLAS COUNTY SCHOOL DISTRICT
RE-1; DOUGLAS COUNTY SCHOOL DISTRICT RE-1
BOARD OF EDUCATION; COLORADO DEPARTMENT
OF EDUCATION; COLORADO STATE BOARD OF
EDUCATION
{00950282 / 4}
Attorneys for Defendants: Douglas County Board of Education
and Douglas County School District:
Names: James M. Lyons, #882
L. Martin Nussbaum, #15370
Eric V. Hall, #32028
David M. Hyams, #42648
Firm: Rothgerber Johnson & Lyons LLP
Address: One Tabor Center, Suite 3000
1200 Seventeenth Street
Denver, Colorado 80202
Tel: 303.623.9000
Fax: 303.623.9222
E-Mail: jlyons@rothgerber.com
mnussbaum@rothgerber.com
ehall@rothgerber.com
dhyams@rothgerber.com
JOINT MOTION TO DISMISS
Defendants, Douglas County Board of Education and Douglas County School District
(collectively, “Defendants”), jointly with Defendants Colorado Board of Education and Colorado
Department of Education (the “State Defendants”), hereby submit their Joint Motion to Dismiss
Plaintiffs’ consolidated complaints for lack of standing and failure to state a claim upon which
relief can be granted pursuant to C.R.C.P. 12(b)(1) and 12(b)(5).
INTRODUCTION
Plaintiffs are seeking to enjoin a constitutionally sound and vibrant educational
opportunity program. Asserting taxpayer standing, Plaintiffs have petitioned this Court for
declaratory and injunctive relief for alleged Colorado constitutional and statutory violations
caused by the Douglas County Choice Scholarship Program (“CSP” or “Program”). The
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constitutional provisions at issue are: Art. II, § 4; Art. IX, §§ 2, 3, 7, 8, 15; and Art. V, § 34.1
The statutes at issue include C.R.S. § 22-54-101 et seq., and § 22-32-122.2 Plaintiffs also allege
a derivative “Common Law Ultra Vires” claim. All of these claims should be dismissed.
Plaintiffs do not have standing to assert violations of the state statutes or Article IX,
Section 3. Accordingly, dismissal of those claims pursuant to C.R.C.P. 12(b)(1) is appropriate.
The rest of the claims are also subject to dismissal pursuant to C.R.C.P. 12(b)(5), as Plaintiffs
have failed to state a claim upon which relief can be granted.
ARGUMENT
Plaintiffs do not have standing to pursue their allegations of statutory violations.
Accordingly, this Court is without jurisdiction to hear those claims and should dismiss them.
I. Plaintiffs’ Claims of Statutory Violations Should Be Dismissed under C.R.C.P.
12(b)(1) Because Plaintiffs Lack Standing.
Colorado recognizes standing as a threshold issue deriving from the Colorado
Constitution. See Douglas Cnty. Bd. of Comm’rs v. Pub. Util. Comm’n, 829 P.2d 1303, 1309
(Colo. 1992). For a court to have jurisdiction, “the plaintiff must have standing to bring the
case.” Ainscough v. Owens, 90 P.3d 851, 855 (Colo. 2004). Standing “is a threshold issue that
must be satisfied in order to decide a case on the merits.” Id.; see also Durdin v. Cheyenne
Mount. Bank, 98 P.3d 899, 902 (Colo. App. 2004) (“Standing is a jurisdictional prerequisite that
requires a named plaintiff to bring suit only to protect a cognizable interest.”).
1
The allegations occur at these locations in the complaints: Art. II, § 4 (LaRue Compl. ¶¶ 84-89 (third cause of
action)); Art. IX, § 2 (LaRue Compl. ¶¶ 90-93 (fourth cause of action); TPE Compl. ¶¶ 56-72 (first cause of action));
Art. IX, § 7 (LaRue Compl. ¶¶ 76-79 (first cause of action); TPE Compl. ¶¶ 97-119 (fourth and fifth causes of
action)); Art. IX, § 8 (LaRue Compl. ¶¶ 80-83 (second cause of action)); Art. IX, § 15 (LaRue Compl. ¶¶ 98-101
(sixth cause of action); TPE Compl. ¶¶ 73-81 (second cause of action), 97-111 (fourth cause of action)); and Art. V,
§ 34 (LaRue Compl. ¶¶ 94-97 (fifth cause of action); TPE Compl. ¶¶ 120-125 (sixth cause of action)).
2
See LaRue Compl. ¶¶ 102-109 (seventh and eighth causes of action); TPE Compl. ¶¶ 56-72, 97-111 (first and
fourth causes of action).
3
To determine standing, Colorado courts follow a two-step test announced in Wimberly v.
Ettenberg, 570 P.2d 535, 539 (Colo. 1977). Standing exists “if: (1) the plaintiff was injured in
fact; and (2) that injury was to a legal right protected by statutory provisions which allegedly
have been violated.” Romer v. Bd. of Cnty. Com'rs of Cnty. of Pueblo, 956 P.2d 566, 572 (Colo.
1998). The injury in fact requirement, “is derived from the state constitutional limitation on
judicial power requiring the presence of an actual controversy, which is demonstrated by a real
injury.” Id. at 573 (citation omitted). The legal interest step requires a plaintiff to “show that its
interest is derived from a recognized legal interest, such as a statute, creating a legally cognizable
interest that is concrete and particularized.” Id. at 573.
Here, Plaintiffs simply have no legally cognizable interest in the statutory claims they
have brought before this Court, making any alleged injury immaterial. Their inability to satisfy
the second step of the Wimberly test is fatal to their statutory claims.
A. Plaintiffs do not have a legally protected interest to enforce statutes.
It is well recognized in Colorado that standing to sue under a statute requires that the
statute at issue reflect “a legislative purpose to confer on [an individual] a right to judicial redress
for alleged violations” of the statute. Stifflear v. Bristol-Myers Squibb Co., 931 P.2d 471, 473
(Colo. App. 1996) (indirect purchaser plaintiff did not have standing to sue under Colorado
Antitrust Act where Act did not provide redress for indirect purchasers). See Olson v. City of
Golden, 53 P.3d 747, 752 (Colo. App. 2002) (taxpayer did not have legally protected interest to
enforce statute that was allegedly violated by municipality where statute at issue did not reflect
legislative purpose to confer judicial redress); Ainscough v. Owens, 90 P.3d 851, 857 (Colo.
2004) (plaintiffs satisfied the legally protected interest prong of standing where they alleged that
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the governmental action denied them the right to be considered for a payroll deduction pursuant
to a statute that granted the Director of the Department of Personnel discretion to grant or deny
requested payroll deductions). The strict requirements of statutory standing exist even while
Colorado allows for broad taxpayer standing for constitutional claims, see Ainscough, 90 P.3d at
85. Plaintiffs must satisfy the requirements to make a claim under the statute independent of
taxpayer standing allegations.
Courts consider three factors when determining whether the statute at issue reflects a
legislative purpose to confer a legal interest that entitles a plaintiff to judicial redress: “(1)
whether the statute specifically creates such a right in the plaintiff; (2) whether there is any
indication of legislative intent to create or deny such a right; and (3) whether it is consistent with
the statutory scheme to imply such a right.” Olson, 53 P.3d at 752 (citing Cloverleaf Kennel
Club, Inc. v. Colo. Racing Comm’n, 620 P.2d 1051 (Colo. 1980)).
In Olson v. City of Golden, the plaintiff asserted taxpayer standing in an action seeking
injunctive and declaratory relief for alleged statutory and constitutional violations based on
agreements entered into between the City of Golden, an urban renewal authority, and a
developer. Applying the three factors above, the Colorado Court of Appeals reviewed the statute
at issue and concluded that the statute did not expressly provide a specific right for taxpayers to
enforce it. Nor was there any indication that the legislature intended to create a taxpayer right to
enforce the statute. Finally, implying such a right would have been inconsistent with the
statutory scheme, as the statute granted discretion to the urban renewal authority to determine a
“fair value” of property it is selling, and allowing a taxpayer to litigate the question of “fair
value” would have been inconsistent with the grant of discretion. Id. at 752-53. The court
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concluded the plaintiff did not allege an injury to a legally protected interest.
Applying the three factors here dictates the same result as Olson, for none of the statutes
cited by Plaintiffs provide judicial redress for taxpayers. As for the first factor, none of the
statutes contains explicit language providing taxpayers a right to enforce the statute. Plaintiffs
do not point to any provision in the statutes as creating a cause of action or giving a basis for
Plaintiffs to sue under the statutes.
Nor is there an indication of a legislative intent to create a taxpayer right of enforcement.
The statutes pertain to the funding mechanisms of public schools and the powers and authorities
of school districts and boards. If standing for any entity could be inferred, it would be for school
districts or boards that are denied funds or their ability to exercise rights—not Plaintiffs.
Regarding the third factor, it is inconsistent with the legislative scheme for any of the
statutes to imply a general taxpayer right of judicial redress. The Public School Finance Act
concerns “the financing of public schools.” C.R.S. § 22-54-102(1). C.R.S. § 22-32-122
concerns a school district’s ability to contract with another entity. C.R.S. § 22-11-307 concerns
accreditation of public schools. C.R.S. § 22-30.5-104(3) concerns charter school requirements
and authority. C.R.S. § 22-32-109 concerns the duties of the board of education. The Colorado
taxpayer is not contemplated in any of these legislative schemes.
Consider the stark implications of the broad statutory standing asserted by the Plaintiffs.
If Plaintiffs can sue under the Public School Finance Act, then any dissatisfied taxpayer could
sue under these technical education statutes any time they disagreed with an educational policy
choice by a district, charter school, the CDE, or the State Board. Courts would become “super-
educators,” sitting in judgment over each policy decision made under these statutes. To avoid
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this problem, standing rules exist. See Wimberly, P.2d at 538 (judicial review of governmental
actions must be exercised cautiously). Just as taxpayers cannot sue anytime they disagree with a
school expenditure, Plaintiffs lack standing under the Public School Finance Act. The same
analysis applies to the other statutes; Plaintiffs lack standing under each of them.
Here, the Colorado Legislature did not grant Plaintiffs standing to petition this Court for
redress for alleged violations of the statutes presented in their complaints. Standing is neither
explicitly nor implicitly conferred. Allowing Plaintiffs to proceed with their statutory claims
would be inconsistent with the statutes’ legislative scheme and would invade the field of policy
preserved to the Legislature. Therefore, Plaintiffs do not have a legally protected interest.
B. Plaintiffs have not suffered an injury in fact.
Plaintiffs also have not been injured in fact by the alleged statutory violations. Plaintiffs
summarily assert that their rights have been violated and that they “are directly and substantially
harmed by this violation of law.” (LaRue Compl. ¶¶ 105, 109; see also TPE Compl. ¶¶ 5, 51-
52.) But this sort of harm is not the “direct and palpable” injury the Wimberly test requires. See
O'Bryant, 778 P.2d at 653. These vague allegations fall short of the purpose of the injury in fact
requirement: to ensure “a concrete adverseness which sharpens the presentation of issues that
parties argue to the courts.” City of Greenwood Vill. v. Petitioners for Proposed City of
Centennial, 3 P.3d 427, 437 (Colo. 2000) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).
Merely alleging that a statute is violated does not confer standing. See Olson v. City of
Golden, 53 P.3d 747, 752 (Colo. App. 2002) (citation omitted) (“Plaintiff has cited no authority,
and we are aware of none, that holds that a taxpayer’s allegation of a statutory violation, without
a sufficient allegation of actual injury, is sufficient to establish standing.”). Furthermore,
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allegations by Plaintiffs that they “will suffer injury because of the loss of control over the
education they are required to fund” (TPE Compl. ¶ 5) are insufficient, as taxpayers do not
directly “control” education; that is the role of local school districts. See Bd. of Educ. v. Booth,
984 P.2d 639, 649 (Colo. 1999). To the extent taxpayers do have control, they exercise it at the
ballot box. See Denver Parents Ass’n. v. Denver Bd. of Educ., 10 P.3d 662, 665 (Colo. App.
2000) (upholding dismissal of complaint by public school parents for alleged substandard quality
of district’s education, noting “such policy issues should be addressed at the ballot box, not
presented as a judicially enforceable contract claim”). Thus, given that Plaintiffs’ level of
“control” over education is undiminished by the Program, this cannot qualify as an injury in fact.
Plaintiffs have not articulated an injury in fact suffered as a result of the alleged statutory
violations. Therefore, Plaintiffs fail both steps of the Wimberly test and do not have standing to
prosecute their statutory claims. Thus, these claims should be dismissed.
II. Plaintiffs’ Claim of Article IX, Section 3 Violations Should also Be Dismissed under
C.R.C.P. 12(b)(1) Because Plaintiffs Lack Standing.
Plaintiffs also do not have standing to allege that the Program violates Art. IX, § 3. (See
TPE Compl. ¶¶ 83-96 (third cause of action).) In Brotman v. East Lake Creek Ranch, LLP, the
Colorado Supreme Court held that taxpayers do not have standing to allege violations of Art. IX,
§ 3. That provision of the Colorado Constitution concerns the Public School Fund, which is
funded by income generated from the Land Board’s management of school lands. This income
“is distinct from and in addition to income generated through taxation for schools.” 31 P.3d 866,
892 (Colo. 2001). Accordingly, taxpayers are not affected and do not have standing to challenge
an alleged unlawful expenditure of public funds under Art. IX, § 3. See id.
Here, Plaintiffs challenge the use of the money from the Public School Fund. (See TPE
8
Compl. ¶ 94.) But the Brotman court held Plaintiffs do not have taxpayer standing to bring this
claim, as the public school fund is not funded by any taxes Plaintiffs may pay.3 Plaintiffs are
only proceeding as taxpayers and this claim and all allegations that depend on it should be
dismissed.4 See id. at 895.
III. Plaintiffs’ Constitutional Claims Should Be Dismissed Because They Fail to State a
Claim upon which Relief Can Be Granted.
Plaintiffs seek declaratory and injunctive relief on the basis that the Program allegedly
violates provisions of the Colorado Constitution. These claims should be dismissed pursuant to
C.R.C.P. 12(b)(5), which allows a defendant to test the formal sufficiency of the complaint. See
Coors Brewing Co. v. Floyd, 978 P.2d 663, 665 (Colo. 1999). It is appropriate to dismiss a
complaint if the substantive law does not support the claims asserted, even though dismissal is
generally disfavored. W. Innovations, Inc. v. Sonitrol Corp., 187 P.3d 1155, 1157 (Colo. App.
2008). Here, dismissal of Plaintiffs’ constitutional claims is appropriate.
Defendants and State Defendants have set forth the substantive law in their responses to
Plaintiffs’ motions for preliminary injunction, which are incorporated herein. Not only does the
substantive law show that Plaintiffs fall short of showing a probability of success on the merits
for their constitutional claims, Plaintiffs’ claims lack any merit, making dismissal the proper
result. This is so regardless of whether Plaintiffs’ allegations are assumed to be true.
First, Plaintiffs’ complaints are based on legal theories which have been definitively
3
The court’s dicta regarding beneficiaries of the trust potentially having standing does not help Plaintiffs, as the
court was discussing land management decisions, not trust fund expenditures, and even so the court did not find
there would be direct beneficiary standing. See Brotman, 31 P.3d at 892. Plaintiffs have not alleged trust
beneficiary status, nor have they made any allegations that the CSP actually harms them in any tangible way. For
instance, Plaintiffs do not allege that the CSP makes the Douglas County traditional schools any worse.
4
Plaintiffs also suggest Art. IX, §§ 5, 9, and 10 are violated (see TPE Compl. ¶ 1, Prayer for Relief (A)), but those
sections are only mentioned in developing TPE’s third cause of action under IX, § 3, not as independent causes of
action.
9
rejected by the Colorado Supreme Court. State funding of student scholarships, even when those
scholarships are used to attend deeply religious schools, complies with the Colorado
Constitution. See generally Americans United for the Separation of Church and State v.
Colorado, 648 P.2d 1072, 1082, 1085, 1086 (Colo. 1982). Indeed, not a single Colorado case
supports Plaintiffs’ extreme interpretation of the religion clauses. State actions which further the
legitimate goal of providing education opportunities for students or which foster local control
over education have never been found to violate any of the religion clauses.
Second, the CSP complies with every interpretation of the education clauses of the
Colorado Constitution, going back as far as 1893 when the Colorado Supreme Court definitively
pronounced that the education clauses provide only a constitutional minimum requirement, and
are not a restriction on the power of the government to provide additional education
opportunities. See In re Kindergarten Sch. 32 P. 422, 422-23 (Colo. 1893). Nothing alleged in
Plaintiffs’ complaints undermines the strong authority in Colorado law for the CSP.5
Third, there can be no doubt that Colorado law, under every alleged provision of the
Constitution, allows the Defendants to create an education opportunity which funds student
choice, while maintaining free and public schools within the district. See, e.g., Lujan v. Colo.
State Bd. of Educ., 649 P.2d 1005, 1021 (Colo. 1982) (“The historical development of public
education in Colorado has been centered on the philosophy of local control.”); see also Bd. of
Educ. v. Booth, 984 P.2d 639, 654 (Colo. 1999); Boulder Valley, 217 P.3d at 927-28. Indeed,
Owens strongly support a local district’s ability to exercise its local control authority to
5
Reference to out-of-state decisions, decided under the unique law in other states, does not support a claim in
Colorado. Plaintiffs’ legal theories are tantamount to asking this District Court to ignore (or overrule) binding
Colorado case law in favor of hand-picked decision from other states which provide the outcome desired by
Plaintiffs.
10
implement a school choice program. See Owens v. Colo. Cong. of Parents, Teachers & Students,
92 P.3d 933, 941 (Colo. 2004) (“local control provides each district with the opportunity for
experimentation, innovation, and a healthy competition for educational excellence”).
With every Colorado case supporting Douglas County’s authority to implement a school
choice option, and Plaintiffs’ inability to point to Colorado authority supporting their
interpretations of the Colorado Constitution, this case is ripe for dismissal.6
CONCLUSION
Plaintiffs do not have standing to assert violations of the state statutes; thus, those claims
should be dismissed pursuant to C.R.C.P. 12(b)(1). Dismissal of Plaintiffs’ Article IX, Section 3
claim is also appropriate under Rule 12(b)(1) for lack of standing. Finally, the remaining claims
are subject to dismissal pursuant to C.R.C.P. 12(b)(5) because they are unsupported by the
substantive law.
WHEREFORE, Defendants and State Defendants respectfully request that this Court
dismiss all of Plaintiffs’ claims.
Dated this 22nd day of July, 2011.
ROTHGERBER JOHNSON & LYONS LLP
s/ David M. Hyams
James M. Lyons, #882
L. Martin Nussbaum, #15370
Eric V. Hall, #32028
David M. Hyams, #42648
Attorneys for Defendants Douglas County Board of
Education and Douglas County School District
6
Plaintiffs’ common law ultra vires claim should also be dismissed as entirely derivative of the other claims. (TPE
fourth cause of action.) An act is not ultra vires if it is done pursuant to the actor’s authority. See Cherokee Water
& Sanit. Dist. v. El Paso Cnty., 770 P.2d 1339, 1341 (Colo. App. 1988), and Defendants and State Defendants have
provided ample law for the authority to implement the CSP.
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JOHN W. SUTHERS
Attorney General
/s/ Antony B. Dyl
Original signature on file at the Colorado Attorney
General’s Office
Antony B. Dyl, #15968*
Senior Assistant Attorney General
Geoffrey N. Blue, #32684*
Deputy Attorney General
Education Unit
State Services Section
Attorney for Petitioners
1525 Sherman Street, 7th Floor
Denver, CO 80203
Telephone: (303) 866-5380
*Counsel of Record
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CERTIFICATE OF SERVICE
I hereby certify that on July 22, 2011, I electronically filed the foregoing with the Clerk
of Court using Lexis/Nexis File and Serve causing an electronic copy to be served upon the
following:
Matthew J. Douglas, Esq. Mark Silverstein, Esq.
Timothy R. Macdonald, Esq. Rebecca T. Wallace, Esq.
Michelle K. Albert, Esq. American Civil Liberties Union
Arnold & Porter LLP Foundation of Colorado
370 17th Street, Suite 4500 400 Corona Street
Denver, CO 80202 Denver, CO 80218
Ayesha N. Khan, Esq. Daniel Mach, Esq.
Gregory M. Lipper, Esq. Heather L. Weaver, Esq.
Americans United for Separation ACLU Foundation Program on Freedom
of Church and State of Religion and Belief
1301 K Street, NW 915 15th Street, NW, Suite 600
Suite 850, East Tower Washington, D.C. 2005
Washington, D.C. 20005
George Langendorf, Esq. Paul Alexander, Esq.
Arnold & Porter LLP Arnold & Porter LLP
22nd Floor, One Embarcadero Center Suite 110, 1801 Page Mill Road
San Francisco, CA 94111-3711 Palo Alto, CA 94304-1216
Michael S. McCarthy, Esq. Antony B. Dyl, Esq.
Colin C. Deihl, Esq. Nicholas G. Stancil, Esq.
Madia G. Malik, Esq. Geoffrey N. Blue, Esq.
Sarah A. Kellner, Esq. Office of the Attorney General
Gordon M. Hadfield, Esq. 1525 Sherman Street, 7th Floor
FAEGRE & BENSON, LLP Denver, CO 80203
3200 Wells Fargo Center
1700 Lincoln
Denver, CO 80203-4532
Alexander Halpern, Esq. William H. Mellor, Esq.
Alexander Halpern LLC Institute for Justice
1426 Pearl Street, #420 901 N. Glebe Road, Suite 900
Boulder, CO 80302 Arlington, VA 22203
s/ Carol Ealey
Carol Ealey
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