25 CO 8
League of Women Voters of Greeley, Weld County, Inc.; Latino Coalition of Weld County; Barbara Whinery; and Stacy Suniga, Petitioners
v.
The Board of County Commissioners of the County of Weld, Respondent
No. 24SC394
Supreme Court of Colorado, En Banc
February 24, 2025
C.A.R.
50 Certiorari to the Colorado Court of Appeals Court of
Appeals Case No. 24CA774 Weld County District Court Case No.
23CV30834 Honorable Todd L. Taylor, Judge
Attorneys for Petitioners: Womble Bond Dickinson (US) LLP
Kenneth F. Rossman, IV Kendra N. Beckwith Elizabeth Michaels
Joseph Hykan Denver, Colorado
Attorneys for Respondent: Hall &Evans, L.L.C. Matthew J.
Hegarty Alexandria L. Bell Denver, Colorado
2
Attorneys for Amici Curiae American Civil Liberties Union
Foundation and American Civil Liberties Union of Colorado:
Timothy R. Macdonald Sara R. Neel Lindsey M. Floyd Denver,
Colorado
Attorneys for Amicus Curiae Colorado Attorney General: Philip
J. Weiser, Attorney General Natalie Hanlon Leh, Chief Deputy
Attorney General Jennifer L. Sullivan, Deputy Attorney
General Kurtis T. Morrison, Deputy Attorney General Alex J.
Acerra, Assistant Attorney General Joshua J. Luna, Assistant
Attorney General Cata A. Cuneo, Assistant Attorney General
Denver, Colorado
JUSTICE HOOD delivered the Opinion of the Court, in which
JUSTICE BOATRIGHT, JUSTICE GABRIEL, JUSTICE HART, JUSTICE
SAMOUR, and JUSTICE BERKENKOTTER joined.
CHIEF
JUSTICE MARQUEZ concurred in the judgment.
3
OPINION
HOOD,
JUSTICE
¶1
In 2023, the Board of County Commissioners of the County of
Weld (the "Board") approved a new map for electing
county commissioners. In approving the map, the Board chose
not to comply with sections 30-10-306.1 to -306.4, C.R.S.
(2024) (the "redistricting statutes"), asserting
that its compliance with statewide mandates was unnecessary
because Weld is a home rule county.
¶2
Weld County residents Stacy Suniga and Barbara Whinery; the
League of Women Voters of Greeley, Weld County, Inc.; and the
Latino Coalition of Weld County (collectively, the
"Voters") sued the Board. They sought a declaratory
judgment that the Board must comply with the redistricting
statutes and an injunction to prohibit the Board from using
the new map. The district court agreed with the Voters and
granted summary judgment in their favor.
¶3
Today, we consider whether home rule counties, like Weld,
must comply with Colorado's redistricting statutes. As
threshold matters, we hold that the redistricting statutes
provide a private right of action and that the Voters have
standing to sue the Board. We further hold that the
redistricting statutes apply to home rule counties, and
therefore, the Board must immediately comply with them.
I.
Facts and Procedural History
¶4
Weld has been a home rule county since 1976. The Board
includes two at-large commissioners, elected by all voters in
Weld County, and three district-
4
specific commissioners, elected by voters in each of the
three districts in Weld County.
¶5
At a March 1, 2023 hearing, the Board considered a single map
that it had drawn. Several Weld County voters, including
petitioners Suniga and Whinery, were present. These voters
objected to the proposed map and asked the Board to comply
with the redistricting statutes. Weld County's attorney
responded that home rule counties, such as Weld, don't
need to comply with them. Although the parties dispute the
law, the fact that the Board didn't comply with the
statutes when adopting the map is undisputed.
¶6
The Voters sued the Board. The district court granted the
Voters' motion for summary judgment and enjoined the
Board from using the newly adopted map. In so doing, the
court ruled that (1) the Voters have standing to challenge
the Board's approval of the redistricting plan; (2) the
redistricting statutes govern county commissioner
redistricting in Weld County; and (3) because the Board
violated the redistricting statutes, the Voters are entitled
to declaratory and injunctive relief to compel the Board to
comply with the redistricting statutes in approving a new
map.
5
¶7
The Board appealed the district court's order to the
court of appeals. The Voters then petitioned this court for
certiorari review before judgment pursuant to C.A.R. 50. We
granted the Voters' petition.[1]
II.
C.A.R. 50 Jurisdiction
¶8
We granted the Voters' petition for certiorari review
under C.A.R. 50 because this case "involves a matter of
substance that is of sufficient public importance to justify
deviation from normal appellate processes and requires
immediate determination in this court." Colo. State
Bd. of Educ. v. Adams Cnty. Sch. Dist. 14, 2023 CO 52,
¶ 17, 537 P.3d 1, 7; see also C.A.R. 50(a)(3).
Our decision will
6
not only clarify the scope of Colorado's redistricting
statutes but also allow Weld County to adjust before its next
commissioner election in 2026.
III.
Analysis
¶9
We begin with an overview of the redistricting statutes. We
then address the following issues in turn: whether the
redistricting statutes provide a private right of action,
whether the Voters have standing, and whether home rule
counties must follow the redistricting statutes'
procedures. Finally, we examine the proper remedy for failing
to comply with the statutes.
¶10
In conducting this analysis, we review all issues of
constitutional and statutory interpretation de novo.
Kulmann v. Salazar, 2022 CO 58, ¶ 15, 521 P.3d
649, 653. We also review standing issues de novo. Colo.
State Bd. of Educ., ¶ 19, 537 P.3d at 7. When
construing a statute, "we first look to the statutory
language itself, giving words and phrases their commonly
accepted and understood meaning." Town of Erie v.
Eason, 18 P.3d 1271, 1276 (Colo. 2001). Our primary task
is to effectuate the legislative purpose, id. at
1275, and "our responsibility is to give full meaning to
the legislative intent," Conte v. Meyer, 882
P.2d 962, 965 (Colo. 1994).
A.
The Redistricting Statutes
¶11
In 2021, the Colorado General Assembly enacted House Bill
21-1047 ("H.B. 21-1047") to curb gerrymandering in
county commissioner redistricting in
7
a manner consistent with requirements for federal and state
legislative redistricting. Ch. 70, secs. 1-3, §§
30-10-306 to -306.4, 2021 Colo. Sess. Laws 277, 277-87.
¶12
In counties with a population exceeding seventy thousand,
like Weld, the board of county commissioners must divide the
county into districts according to a final redistricting
plan. § 30-10-306(2), C.R.S. (2024). The board must
designate a redistricting commission to establish those
districts, and the statute encourages the board to make that
commission independent. § 30-10-306.1(1), C.R.S. (2024).
¶13
In addition, the commission must hold at least three public
hearings, § 30-10-306.4(1)(f), C.R.S. (2024), soliciting
feedback on at least three different plans before adopting a
final plan, § 30-10-306.4(1)(d). The commission is
precluded from voting on a final plan "until at least
seventy-two hours after it has been proposed to the
commission in a public meeting," § 30-10-306.2(2),
C.R.S. (2024), and it must "provide meaningful and
substantial opportunities for county residents to present
testimony, either in person or electronically, at
hearings," § 30-10-306.2(3)(b).
¶14
In drafting the plan, the redistricting statutes require the
commission to:
• "[m]ake a good-faith effort to achieve
mathematical population equality between districts,"
§ 30-10-306.3(1)(a), C.R.S. (2024);
8
• "preserve whole communities of interest and whole
political subdivisions" as is "reasonably
possible," including making districts "as compact
as . . . reasonably possible," § 30-10-306.3(2);
and
• "maximize the number of politically competitive
elections in the county," § 30-10-306.3(3)(a).
¶15
Lastly, section 30-10-306.4 lays out the deadlines for the
preparation, amendment, and approval of the plans. The board
of county commissioners must establish these deadlines to
ensure that it adopts "a plan for the redrawing of
county commissioner districts no later than September 30 of
the redistricting year." § 30-10-306.4(1).
B.
Private Right of Action
¶16
The Board asserts that because the redistricting statutes
don't expressly create a private right of action, none
exists. We disagree.
¶17
True, we require a "clear expression" of
legislative intent to establish a private right of action.
City of Arvada ex rel. Arvada Police Dep't v. Denver
Health &Hosp. Auth., 2017 CO 97, ¶ 22, 403 P.3d
609, 614 (quoting State v. Moldovan, 842 P.2d 220,
227 (Colo. 1992)). But if a statute doesn't explicitly
provide a private right of action, we may consider (1)
"whether the plaintiff is within the class of persons
intended to be benefitted by the legislative enactment";
(2) "whether the legislature intended to create, albeit
implicitly, a private right of action"; and
9
(3) "whether an implied civil remedy would be consistent
with the purposes of the legislative scheme."
Gerrity Oil &Gas Corp. v. Magness, 946 P.2d 913,
923 (Colo. 1997) (quoting Allstate Ins. Co. v.
Parfrey, 830 P.2d 905, 911 (Colo. 1992)).
¶18
Because the redistricting statutes are silent regarding a
private right of action, we employ this three-factor test
here. The test for whether there's an implied private
right of action is the same for both private and government
defendants. City of Arvada, ¶ 24, 403 P.3d at
615.
¶19
First, the Voters are within the class of persons
intended to benefit from the redistricting statutes. The
General Assembly's stated purpose for enacting H.B.
21-1047 was to empower "voters in every Colorado county
. . . to elect commissioners who will reflect the communities
within the county and who will be responsive and accountable
to them." Ch. 70, sec. 1(1)(i), 2021 Colo. Sess. Laws
277, 278. Petitioners in this case are two individual
registered Weld County voters and two nonprofit organizations
whose members are also Weld County voters. These are the
constituents the redistricting statutes are intended to
benefit.
¶20
Second, we conclude that the General Assembly
intended to give registered voters a private right of action
to ensure that counties comply with the redistricting
statutes. After all, the General Assembly told us that it
wanted "to ensure that counties that elect some or all
of their commissioners by the voters of individual districts
are held to the same high standards that Amendments Y and Z
require of
10
redistricting for congressional districts, state house of
representative districts, and state senate districts,"
including through "robust public participation."
Ch. 70, sec. 1(2), 2021 Colo. Sess. Laws 277, 278. This goal
would be thwarted if the very constituents this law is
designed to protect couldn't seek its enforcement.
See, e.g., Parfrey, 830 P.2d at 911
(explaining that the goal of the uninsured/underinsured
motorist coverage statute would be "substantially
frustrated . . . without a private civil remedy to redress
the injuries and damages caused by an insurer's failure
to discharge its statutory responsibility").
¶21
Third, an implied civil remedy is consistent with
the purposes of the redistricting statutes' legislative
scheme. As we have already explained, the procedural
requirements in the redistricting statutes promote
transparency and fairness. Without the remedy provided by a
private right of action, those elaborate requirements could
become a dead letter. That outcome is impossible to square
with the purposes of the legislative scheme.
¶22
Thus, because the Voters are among the class of persons
protected by the redistricting statutes, pursuant to which
the General Assembly implicitly created a private right of
action and a civil remedy consistent with the statutory
scheme, we conclude that the redistricting statutes provide a
private right of action.
11
C.
Standing
¶23
The Board asserts that the Voters don't have standing
because they haven't suffered a "concrete harm"
and have made only "generalized grievances."
See Hickenlooper v. Freedom from Religion Found.,
Inc., 2014 CO 77, ¶ 9, 338 P.3d 1002, 1006-07
(noting that neither an "overly 'indirect and
incidental'" injury nor the "remote possibility
of a future injury" convey standing (quoting
Ainscough v. Owens, 90 P.3d 851, 856 (Colo. 2004))).
Again, we disagree.
¶24
Standing is a jurisdictional requirement. Ainscough,
90 P.3d at 855. To establish standing, a plaintiff must show
that "the plaintiff suffered (1) an injuryin-fact, (2)
to a legally protected interest." Id.
Organizations have standing to sue if their individual
members have standing to sue. Colo. Union of Taxpayers
Found. v. City of Aspen, 2018 CO 36, ¶ 10, 418 P.3d
506, 510.
¶25
The injury-in-fact prong asks whether there's 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)); accord Ainscough, 90 P.3d at 856.
Injury-in-fact includes the deprivation of legal rights.
Ainscough, 90 P.3d at 856.
¶26
The legally-protected-interest prong asks "whether the
plaintiff has a claim for relief under the constitution, the
common law, a statute, or a rule or
12
regulation." Id. Such an interest includes
"having a government that acts within the boundaries of
our state constitution," and it "encompass[es] all
rights arising from constitutions, statutes, and case
law." Id. As with the private-right-of-action
analysis, this prong ensures that "the injury is
actionable." Denver Health &Hosp. Auth.,
¶¶ 20-21, 403 P.3d at 613-14 ("When a statute
does not specify what constitutes an actionable injury, we
look to the law of implied private rights of action to
determine whether the statute might still create a claim
conferring standing.").
¶27
Here, the Board deprived the Voters of the procedural
protections afforded by the redistricting statutes. That is
an injury-in-fact. See Ainscough, 90 P.3d at 856.
And, as set forth above, the Voters have an implied private
right of action under the redistricting statutes. This right
is an actionable, legally protected interest. See
Cloverleaf Kennel Club, Inc. v. Colo. Racing Comm'n,
620 P.2d 1051, 1058 (Colo. 1980) (noting, in the context of
the Administrative Procedure Act, that "the law of
implied private rights of action furnishes a model for our
judgment whether the substantive law creates rights the
invasion of which confers standing").
¶28
Therefore, the Voters have standing to sue the Board, and we
turn to the merits.
13
D.
Home Rule Counties Have a Constitutional Duty to Comply with
the Redistricting Statutes
¶29
To set the stage on the merits, we first address whether home
rule counties are exempt from the requirements of the
redistricting statutes. The Board argues that because the
General Assembly "cannot prohibit the exercise of
constitutional home rule powers," Town of Telluride
v. San Miguel Valley Corp., 185 P.3d 161, 170 (Colo.
2008), home rule counties aren't subject to the
redistricting statutes.
¶30
To assess this claim, we must examine its constitutional
underpinnings.[2]The Colorado Constitution vests the
registered electors of each county with "the power to
adopt a home rule charter establishing the organization
and structure of county government consistent with this
article and statutes enacted pursuant hereto." Colo.
Const. art. XIV, § 16(1) (emphasis added). And while
home rule counties are "empowered to provide such
permissive functions, services, and facilities and
to exercise such permissive powers as may be authorized by
statute . . . except as may be otherwise prohibited or
limited by charter or this constitution," id.
at § 16(4) (emphasis added), they are still obliged to
comply with
14
any "mandatory county functions"
required by statute, id. at § 16(3) (emphases
added). The redistricting statutes employ mandatory, not
permissive, language. For example, "[t]he board . . .
must designate a county commissioner district
redistricting commission," § 30-10-306.1(1)
(emphasis added), and "[t]he commission shall
not vote upon a final plan until at least seventy-two
hours after it has been proposed," § 30-10-306.2(2)
(emphasis added). So, for purposes of this analysis, we must
distinguish matters that go to the "organization and
structure" of county government from those that go to
its "mandatory . . . functions." See Colo.
Const. art. XIV, § 16(1), (3).
¶31
The Board points to Board of County Commissioners v.
Andrews, 687 P.2d 457, 459 (Colo.App. 1984), to support
its position that home rule counties aren't subject to
the redistricting statutes. In Andrews, a division
of the court of appeals observed that "home rule
counties are given broad discretion in the area of
structure." Id. The division held that the home
rule county's charter provision establishing the
personnel system for the sheriff's office superseded the
state statute governing the county sheriff's authority to
hire and fire. Id. The division reasoned that the
personnel system related to the "structure and
organization of county government, not to the functions of
that government." Id.
¶32
The Board analogizes the personnel system in Andrews
to the redistricting process in Weld County's Charter,
asserting that it may draw redistricting maps
15
on its own terms because this activity likewise falls under
the county's "organization and structure."
We're unpersuaded.
¶33
The Andrews division described actions that fall
within county structure as those "creating . . . a frame
of government, designating county officials, and establishing
their relative duties within the county
government." Id. (emphasis added). On the other
hand, it observed that "[i]n terms of the functions . .
. the constitution is much more restrictive. A home
rule county must do the things that all counties
must do and must provide the services all counties
must provide." Id. at 458 (emphases added). So,
Andrews acknowledged that the Colorado Constitution
limits home rule counties' authority to determine the
functions it must carry out.
¶34
In distinguishing between structure and function, dictionary
definitions are also instructive. See Eason, 18 P.3d
at 1276 (construing words and phrases according to their
commonly accepted meanings). Black's Law Dictionary
defines "structure" as "[t]he organization of
elements or parts," such as "corporate
structure." Structure, Black's Law
Dictionary (12th ed. 2024). Conversely, "function"
is defined as "[o]ffice; duty; the occupation of an
office." Function, Black's Law Dictionary
(12th ed. 2024). And while not directly on point, the
definition of "municipal function" is also helpful
as we consider these terms in the county government context:
"[t]he duties and responsibilities that a municipality
owes its members." Municipal function,
Black's Law Dictionary (12th ed. 2024).
16
¶35
Taken together, these definitions support the
Andrews division's understanding of these terms:
"structure" relates to the internal organization of
parts, such as personnel rules, which home rule counties are
constitutionally empowered to establish, whereas
"function" relates to the duties a home rule county
must carry out, a power that is constrained by the
constitution and curtailed by statute. Colo. Const. art. XIV,
§ 16(1), (3). In other words, structure refers to
how a county conducts its internal affairs, and
function refers to what a county government is
obliged to do for its citizens.
¶36
Applying that interpretation here, the Board's
redistricting duties appear to fall into the county's
"function." The statutes' requirements, such as
"designat[ing] a county commissioner district
redistricting commission," § 30-10-306.1(1);
providing "meaningful and substantial opportunities for
county residents to present testimony," §
30-10-306.2(3)(b); and making "a good-faith effort to
achieve mathematical population equality between
districts," § 30-10-306.3(1)(a), to name a few, all
represent duties and responsibilities that a board of county
commissioners owes its citizens throughout this process. By
contrast, these requirements don't tell the
Board how to frame its internal organization or how the
individual members of the Board work together and arrange
duties once elected, which would go to the county's
structure.
17
¶37
For these reasons, we conclude that the Board's duty to
draw and adopt redistricting maps according to the
redistricting statutes relates to the county's
function, not the county's structure. And
because the Colorado Constitution requires home rule counties
to carry out statutorily mandated functions, home rule
counties, like Weld, must comply with the redistricting
statutes.[3]
E.
Remedy
¶38
Having determined that Weld County must comply with the
redistricting statutes, we turn to the question of
when it must do so. The district court enjoined the
Board's use of the map in question, but it also allowed
the Board to use the previous map (the one in use before the
March 1, 2023 resolution) if it couldn't adopt a new map
in time for the next election.
18
¶39
Section 30-10-306.4(1) requires a board of county
commissioners to "adopt a [final redistricting] plan . .
. no later than September 30 of the redistricting year."
A board "may not revise or alter county commissioner
districts, beyond making de minimis revisions or alterations,
unless the board of county commissioners makes such revisions
or alterations during a redistricting year in accordance with
a final redistricting plan pursuant to section
30-10-306.4." § 30-10-306.1(3). A
"[r]edistricting year" is the second odd-numbered
year after the "federal decennial census." §
30-10-306(6)(h). In this case, the census year was 2020, so
the redistricting year was 2023.
¶40
The Board asserts that, even if it must follow the
redistricting statutes, section 30-10-306.1(3) prohibits it
from redistricting until 2033-the second odd-numbered year
after the next federal census. We disagree.
¶41
The Board's position would fail to effectuate the
legislative intent of the redistricting statutes and lead to
an absurd result for at least two reasons. See
Eason, 18 P.3d at 1276 (avoiding constructions that lead
to absurd results).
¶42
First, the previous map, adopted in 2015, relied on
2010 census data. The Board admitted that it undertook its
2023 map-drawing process due to Weld County's rapid
population growth. If the Board is permitted to use the 2015
map, Weld County's commissioner districts would be based
on 2010 census data until 2033. This result would be
inconsistent with certain goals of the statute: that once
19
a decade the Board "[m]ake a good-faith effort to
achieve mathematical population equality between
districts," § 30-10-306.3(1)(a), while preserving
communities of interest and political subdivisions, §
30-10-306.3(2)(a). Moreover, the 2015 map wasn't drawn
and approved according to the redistricting statutes enacted
in 2021, so its use wouldn't remedy the injury to the
Voters (namely, the Voters' legally protected right to
have the maps drawn in compliance with those statutes). Using
a map based on outdated population data that was drawn before
the current statutory protections were put in place would
conflict with the Board's statutory duties.
¶43
Second, if no remedy is available until the
next statutory redistricting year in 2033, the Board
could simply hold out, violate the statute again in ten
years, and wait out the next decade until the following
census year. (Even if this Board wouldn't do so,
the point remains that a board could.) There would
potentially be no meaningful relief from the injury to the
Voters' legal right to have their county commissioner
redistricting maps drawn in accordance with the statutory
requirements. This would create an absurd loophole.
¶44
Therefore, we order the Board to draw and approve a new
county commissioner district map in compliance with the
redistricting statutes and to do so in time for that map to
be used in the 2026 county commissioner election.
20
IV.
Conclusion
¶45
We reverse that portion of the district court's order
permitting the Board to use the 2015 map, but we otherwise
affirm its order granting summary judgment in favor of the
Voters. Because the Board may no longer use the 2015 map, we
remand the case to the district court with instructions to
order the Board to complete the county commissioner
redistricting process in accordance with Colorado's
redistricting statutes in time for the 2026 Weld County
Commissioner Election.
21
CHIEF
JUSTICE MARQUEZ, concurring in the judgment.
¶46
I agree with the result the majority reaches today. I further
agree that the Voters[1] have standing and that the
Board[2] has a legal duty to comply with the
redistricting statutes, sections 30-10-306.1 to -306.4,
C.R.S. (2024). I write separately, however, because I would
construe the Voters' request to order the Board to comply
with the redistricting statutes as a request for mandamus
relief. This construction is important for two reasons.
¶47
First, the majority never explains this court's authority
to order the Board to comply with the redistricting statutes.
Generally, courts do not enjoin legislative bodies, such as
the Board, absent "extraordinary circumstances."
Markwell v. Cooke, 2021 CO 17, ¶ 19, n.6, 482
P.3d 422, 426 n.6 (quoting Lewis v. Denver City
Waterworks Co., 34 P. 993, 995 (Colo. 1893)). Although
injunctive relief is typically deployed to prevent harm or
maintain the status quo, the majority does not cite to any
Colorado precedent justifying a court's reliance on an
injunction to compel a legislative body to carry out an
affirmative act.
22
¶48
By contrast, courts have traditionally used mandamus relief
to compel a public official or governmental body to perform a
duty required by law. See Bd. of Cnty. Comm'rs v.
Cnty. Rd. Users Ass'n, 11 P.3d 432, 437 (Colo.
2000); see also Marbury v. Madison, 5 U.S. (1
Cranch) 137, 149 (1803). That is precisely the relief that
the Voters ask for here: an order directing the Board to
conduct a redistricting process pursuant to the redistricting
statutes. Moreover, both this court and the district court
have the express authority to issue writs of mandamus. Colo.
Const. art. VI, §§ 3, 9(1); C.R.C.P. 106(a)(2).
Although the parties' arguments regarding the
applicability of C.R.C.P. 106(a)(4) overlooked the district
court's power of mandamus under C.R.C.P. 106(a)(2), that
does not mean the court's power does not exist. Nor does
the parties' oversight absolve us of the responsibility
to assure ourselves of the court's authority to act.
¶49
Second, and relatedly, I am concerned with the majority's
unnecessary reliance on Allstate Insurance Co. v.
Parfrey, 830 P.2d 905, 911 (Colo. 1992), to find an
implied right of action here. The Parfrey test
applies to implied claims for damages, particularly in the
tort context. But the Voters here seek neither damages nor
relief in tort. Rather, the Voters seek to compel government
officials to perform various duties plainly imposed by the
redistricting statutes.
¶50
Again, construing the Voters' request for an order
directing compliance as a request for mandamus relief
resolves this tension. I see no need to stretch
Parfrey
23
to fit the circumstances of this case when the Voters'
complaint clearly meets the requirements for mandamus relief.
See C.R.C.P. 106(a)(2) (abolishing the special
pleading requirements for mandamus claims). Further, by
relying on Parfrey, today's decision injects
uncertainty and confusion into Colorado's case law on
mandamus.
¶51
For these reasons, I respectfully concur only in the
judgment.
I.
Authority to Grant Relief
¶52
The majority suggests that unless this court can compel the
Board to redraw its county districts before the next federal
census, the legislative intent of the redistricting statutes
would be thwarted-leading to an absurd result. Maj. op.
¶ 41. But the majority does not identify the source of
any court's authority to order the Board to undertake the
redistricting process, particularly now, outside of statutory
deadlines. Identifying the source of such authority is
important because directing a legislative body to take
specific action raises significant separation of powers
concerns. See Grossman v. Dean, 80 P.3d 952, 961
(Colo.App. 2003) ("A request that the court enjoin
conduct by the legislature generally entails an improper
intrusion into legislative affairs." (citing Colo.
Common Cause v. Bledsoe, 810 P.2d 201, 210 (Colo.
1991))).
¶53
Courts in other jurisdictions have grounded their authority
to compel redistricting in specific language in their
constitutions. See Hoffmann v. N.Y. State Indep.
Redistricting Comm'n, 234 N.E.3d 1002, 1012 (N.Y.
2023)
24
(relying on a constitutional provision expressly allowing
courts to "order the adoption of, or changes to, a
redistricting plan as a remedy for a violation of law"
(quoting N.Y. Const. art. III, § 4(e))). And no
comparable language exists in the redistricting statutes at
issue here.
¶54
However, there is no question that Colorado district courts
have the constitutional authority to "compel performance
by public officials of a plain legal duty" by issuing a
writ of mandamus. Cnty. Rd. Users Ass'n, 11 P.3d
at 437; see also C.R.C.P. 106(a)(2); Colo. Const.
art. VI, §§ 3, 9(1). It is that power that
justifies the order here directing the Board to comply with
its duties under the redistricting statutes.
II.
Right of Action
¶55
Construing the Voters' request as one for mandamus relief
also avoids concerns raised by the majority's
inappropriate reliance on the Parfrey test.
A.
Parfrey
¶56
In Parfrey, this court asked "whether a private
tort remedy is available against a nongovernmental defendant
for violating a statutory duty." 830 P.2d at 911.
Parfrey's implied-private-right-of-action test
was thus developed in the tort context, and its factors
reflect that aim. For example, Parfrey's first
factor asks "whether the plaintiff is within the class
of persons intended to be benefitted by
25
the legislative enactment." Id. This factor
reflects the duty element of a negligence claim, which in the
case of nonfeasance asks whether there is a special
relationship between two individuals or classes of persons.
Bittle v. Brunetti, 750 P.2d 49, 53 (Colo. 1988)
("No special relationship exists between the plaintiff
and the defendants in this case or between the class of
pedestrians using public sidewalks and the class of people
owning or occupying property abutting public
sidewalks.").
¶57
True, this court has since held that "[t]he same
implied-private-right-of-action analysis applies irrespective
of the defendant's governmental status." City of
Arvada ex rel. Arvada Police Dep't v. Denver Health
&Hosp. Auth., 2017 CO 97, ¶ 24, 403 P.3d 609,
614. And this court has, in limited instances, relied on
Parfrey in other contexts. See Taxpayers for
Pub. Educ. v. Douglas Cnty. Sch. Dist., 2015 CO 50,
¶ 23, 351 P.3d 461, 469 (holding that the petitioners
lacked standing to challenge a taxpayer funded scholarship
program under Parfrey), cert. granted and
judgment vacated sub nom. Colo. State Bd. of Educ. v.
Taxpayers for Pub. Educ., 582 U.S. 951 (2017). But this
court has never used Parfrey to find an implied
right of action in a case similar to this one. This case does
not involve a tort claim. It does not seek damages. It does
not seek to enjoin a defendant from acting, but
rather, it seeks an order compelling the defendant
to act.
26
¶58
For these reasons, I would not apply Parfrey here,
well beyond its original context, particularly when mandamus
provides the exact relief the Voters seek.
B.
Mandamus Actions
¶59
This is not the first time county residents have sought to
compel their board of county commissioners to redraw county
districts. In Board of County Commissioners v.
Edwards, 468 P.2d 857, 858 (Colo. 1970), residents of
Saguache County did just that. When county residents brought
suit, Saguache County had not redrawn its county districts in
over forty years. Id. During that period, Colorado
had enacted statutes requiring county districts to be as
"equal in population as possible." Id.
(quoting § 35-3-6, C.R.S. (1963)). The redistricting
statutes then in effect, as in this case, did not contain any
express language allowing residents to bring an action to
enforce their terms. See §§ 35-3-1 to -22,
C.R.S. (1963). This court nevertheless affirmed the district
court's judgment requiring the county board of
commissioners to redraw the districts. Edwards, 468
P.2d at 859. In doing so, we observed that "[i]t is well
established that[,] to compel the performance of an act which
the law specifically enjoins upon public officers as a duty,
mandamus is the proper and effective remedy."
Id.
¶60
A plaintiff seeking mandamus relief must satisfy a three-part
test: "(1) the plaintiff must have a clear right to the
relief sought, (2) the defendant must have a clear duty to
perform the act requested, and (3) there must be no other
available
27
remedy." Cnty. Rd. Users Ass'n, 11 P.3d at
437. The Voters' claim meets these requirements.
¶61
First, the Voters have "a clear right to the relief
sought." Id. Although some statutes expressly
allow plaintiffs to bring a mandamus action, see,
e.g., § 10-3-814(3), C.R.S. (2024), this is not
necessary for a plaintiff to establish a clear right to
mandamus relief. See Edwards, 468 P.2d at 858.
Colorado courts have held that the first element is met when
the plaintiff is among the intended beneficiaries of the
public official's legal duty. See id. (holding
that the residents of Saguache County had a clear right to
compel the board of county commissioners to redistrict under
the redistricting statutes). Indeed, under the first and
second elements for mandamus relief, the plaintiff's
right to relief and the defendant's duty generally stem
from the same legal source. Id.
¶62
Here, the majority correctly notes that in enacting the
redistricting statutes, the legislature declared, "In
order for our democratic republic to truly represent the
voices of the people, districts must be drawn such that the
people have an opportunity to elect representatives who are
reflective of and responsive and accountable to their
constituents." Ch. 70, sec. 1(1)(a), 2021 Colo. Sess.
Laws 277, 277. The redistricting statutes were thus enacted
for the people's benefit and to ensure that county
districts represent their constituents. The Voters, as
residents
28
of Weld County, thus have a clear right to have districts
drawn in compliance with the redistricting statutes.
¶63
Second, the Board has "a clear duty to perform the act
requested." Cnty. Rd. Users Ass'n, 11 P.3d
at 437. This second requirement "compel[s] the
performance of a purely ministerial duty involving no
discretionary right and not requiring the exercise of
judgment." Id. The use of mandatory language,
such as "shall" or "must," signals that
the law is intended to impose "a mandatory duty and not
suggest merely a permissive or discretionary act."
Edwards, 468 P.2d at 859.
¶64
The redistricting statutes contain several non-discretionary,
ministerial duties. For example, county boards
"must designate a county commissioner district
redistricting commission," § 30-10-306.1(1), C.R.S.
(2024) (emphasis added), and they "shall
appoint staff as needed to assist the commission,"
§ 30-10-306.2(1), C.R.S. (2024) (emphasis added).
Redistricting commissions, in turn, "shall . .
. [m]ake a good-faith effort to achieve mathematical
population equality between districts" and
"[c]omply with the federal 'Voting Rights Act of
1965,' 52 U.S.C. sec. 10301." §
30-10-306.3(1)(a), (b), C.R.S. (2024) (emphasis added). They
also "[a]s much as is reasonably possible . . . must
preserve whole communities of interest and whole political
subdivisions, such as cities and towns," and "to
the extent reasonably possible, maximize the number of
politically competitive districts." §
30-10-306.3(2)(a), (3)(a). Finally, county boards
"must"
29
create "a website and a method for county residents to
present testimony," submit "not less than three
plans for county commissioner districts," publish the
plans online, and have "[t]hree public hearings on the
plans." § 30-10-306.4(c)-(f), C.R.S. (2024). These
duties of the Board are non-discretionary.
¶65
Third, the Voters have "no other available remedy."
Cnty. Rd. Users Ass'n, 11 P.3d at 437.
"[M]andamus will not issue until all forms of
alternative relief have been exhausted." Gramiger v.
Crowley, 660 P.2d 1279, 1281 (Colo. 1983). Such
alternative relief can take several forms, including common
law and statutory actions. Julesburg Sch. Dist. No. RE-1
v. Ebke, 562 P.2d 419, 421 (Colo. 1977) (denying
mandamus relief when a contract claim was available);
Dep't of Revenue v. Dist. Ct., 802 P.2d 473, 477
(Colo. 1990) (denying mandamus relief when the Administrative
Procedure Act provided relief).
¶66
As in Edwards, the redistricting statutes at issue
here do not specify a remedy for noncompliance. Nor was
there, before today's opinion, any other statutory or
common law action that the Voters could have brought to
compel the Board to act. Because I reject the majority's
reliance on Parfrey, I would hold that the Voters
lacked an alternative, available remedy. And thus, with all
three requirements met, I would hold that the Voters are
entitled to mandamus relief.
¶67
The fact that the Voters did not expressly seek mandamus
relief does not preclude such relief because C.R.C.P. 106(a)
abolished the special pleading
30
requirements for mandamus actions. Further, the district
court's order on appeal ruled on the Board's motion
to dismiss and the Voters' motion for summary judgment.
To the extent the district court was ruling on the
Board's motion to dismiss, the exact theory of relief
pled by the Voters is not important. Pleadings are construed
to do substantial justice, and what matters is that the
pleaded facts entitle the plaintiff to relief under the law.
C.R.C.P. 8(e)(2); Spomer v. City of Grand Junction,
355 P.2d 960, 963 (Colo. 1960). As the majority notes, it is
undisputed that the Board failed to follow the redistricting
statutes. Maj. op. ¶ 5. And to the extent the district
court granted summary judgment on the Voters' claim, this
court can affirm a judgment based on any ground supported by
the record, whether or not it was considered by the trial
court. Laleh v. Johnson, 2017 CO 93, ¶ 24, 403
P.3d 207, 212.
¶68
And we are not precluded from construing the Voters'
claim as a mandamus action given the procedural posture of
this case. Requests for mandamus relief have come before this
court via original proceedings and certiorari review.
Meredith v. Zavaras, 954 P.2d 597, 601 (Colo. 1998)
(addressing mandamus relief under C.A.R. 21 jurisdiction);
Cnty. Rd. Users Ass'n, 11 P.3d at 434
(addressing mandamus relief under certiorari jurisdiction).
31
C.
The Impact of Today's Decision on Mandamus
Jurisprudence
¶69
Today's decision injects confusion and uncertainty into
our mandamus jurisprudence. As mentioned, mandamus actions
can only be brought if there is no alternative remedy
available. Cnty. Rd. Users Ass'n, 11 P.3d at
437. But today's decision suggests that a government
official can be compelled to act via an implied right of
action under Parfrey. If so, there will always be
alternative remedies for claims that would otherwise qualify
for mandamus relief, effectively eliminating plaintiffs'
ability to bring mandamus actions. Today's decision thus
undermines over 150 years of Colorado's mandamus
precedent. See, e.g., Deitz v. City of
Cent., 1 Colo. 323, 332 (1871).
¶70
This result is concerning. Because the Parfrey test
was designed to address implied claims for damages in the
tort context, its factors do not reflect many of the nuances
that have developed in the mandamus context. For example,
under Parfrey, there is no requirement that the
compelled official act be non-discretionary. It would appear
that future plaintiffs could rely on today's decision to
argue that the Parfrey test authorizes them to ask
courts to compel otherwise discretionary acts by government
officials. Additionally, the Parfrey analysis does
not ask whether the plaintiff has an available remedy.
Today's decision would suggest that litigants can now
circumvent alternative remedies, such as administrative or
common law claims, and instead seek injunctions against
32
government officials. Even if the majority believes that
Parfrey can deal with these problems, I fear
today's opinion inadvertently gives rise to new legal
issues that could be easily avoided.
III.
Conclusion
¶71
In sum, to avoid separation of powers concerns and to resolve
this case in line with longstanding precedent, I would
construe the Voters' request to order the Board to comply
with the redistricting statutes as a request for mandamus
relief.
¶72
Accordingly, I respectfully concur only in the judgment.
---------
Notes:
[1] We granted certiorari to review the
following five issues:
1. Whether the trial court erred in concluding that
section 30-10-306, et seq., C.R.S. (2023), implies a private
right of action.
2. Whether the trial court erred in concluding that
plaintiff-appellants had standing to sue the Board based on
nothing more than generalized grievance constituting pure
procedural irregularities.
3. Whether the trial court erred in concluding as a
matter of law that section 30-10-306, et seq., applies to a
home rule county with a conflicting charter.
4. Whether the trial court erred in determining there
is no conflict between the provisions of section 30-10-306,
et seq., and the Weld County home rule charter.
5. Whether the Board must be directed to engage in a
county commissioner redistricting process that complies with
the redistricting statutes for future elections.
[2] Of course, "[a] county is not an
independent governmental entity existing by reason of any
inherent sovereign authority of its residents; rather, it is
a political subdivision of the state," and "as
such, [a county] possesses only those powers expressly
granted by the constitution or delegated to it by
statute." Romer v. Bd. of Cnty. Comm'rs,
897 P.2d 779, 782 (Colo. 1995) (first quoting Bd. of
Cnty. Comm'rs v. Love, 470 P.2d 861, 862 (Colo.
1970); and then quoting Pennobscot, Inc. v. Bd. of Cnty.
Comm'rs, 642 P.2d 915, 918 (Colo. 1982)).
[3] The Board asserts that Weld
County's Charter conflicts with the statutes and that the
Board must follow the Charter. The Voters counter that the
Charter and the redistricting statutes are not materially
different and that the Charter itself requires the county to
comply with the redistricting statutes. Because we conclude
that the statutes supersede a home rule county's charter,
this issue is moot, and we don't address it.
Additionally, because the redistricting statutes
contain an implied right of action, there's no separation
of powers concern. See Colo. Const. art. III
("[N]o person or collection of persons charged with the
exercise of powers properly belonging to one of these
[legislative, executive, and judicial] departments shall
exercise any power properly belonging to either of the
others."). Today, we order the Board to perform duties
that the General Assembly already mandated and that the
Constitution doesn't allow the Board to ignore.
[1] Like the majority, I refer
collectively to Weld County residents Stacy Suniga and
Barbara Whinery; the League of Women Voters of Greeley, Weld
County, Inc.; and the Latino Coalition of Weld County as the
"Voters." Maj. op. ¶ 2.
[2] Like the majority, I refer to the
Board of County Commissioners of the County of Weld as the
"Board." Maj. op. ¶ 1.