Hickenlooper, Governor of Colorado v. Freedom from Religion Foundation, Inc

2014 CO 77, 338 P.3d 1002, 2014 Colo. LEXIS 1011, 2014 WL 6656983

• Court: Supreme Court of Colorado
• Decided: November 24, 2014
• Docket: Supreme Court Case 12SC442
• Status: Published

Opinions

CHIEF JUSTICE RICE

delivered the Opinion of the Court.

T1 We granted certiorari to determine whether Respondents Freedom from Religion Foundation ("the Foundation") and four of its Colorado members ("the Colorado members") have standing to sue Petitioner Governor John Hickenlooper ("the Governor") in his official capacity for issuing annual honorary proclamations that recognize a "Colorado Day of Prayer."¹ Contrary to the court of appeals, we hold that the use of public funds to cover the incidental overhead costs associated with issuing the honorary proclamations does not, by itself, constitute an injury sufficient to establish taxpayer standing. Furthermore, contrary to the trial court, we hold that the psychic harm endured by Respondents as a result of media coverage revealing the existence of the honorary proclamations does not, by itself, constitute an injury sufficient to establish individual standing. Accordingly, we reverse the judgment of the court of appeals, see Freedom from Religion Found. v. Hickenlooper, 2012 COA 81, T 61, - P.8d --, and remand to the court of appeals with instructions to return the case to the trial court for dismissal.

I. Facts and Procedural History ²

(2 In 1952, Congress passed a resolution establishing a "National Day of Prayer," which was later officially defined as the first Thursday of May, see 86 U.S.C.A. § 119 (1998). Today, most states recognize statewide days of prayer that coincide with the National Day of Prayer³ Colorado's governor has issued annual honorary proclamations⁴ recognizing a Colorado Day of Prayer since 2004. These honorary proclamations have always been issued in response to requests from the National Day of Prayer Task Force ("the Task Force")⁵ In the past, a public event has been held on the steps of the Colorado Capitol to celebrate the Colorado Day of Prayer.⁶

3 Respondents, who self-identify as "nonbelievers," sued the Governor in his official capacity, alleging that his predecessors violated the Preference Clause in article II, section 4 of the Colorado Constitution by issuing annual Colorado Day of Prayer honorary proclamations from 2004 through 2009.⁷ According to Respondents, these government-issued honorary proclamations-which proclaimed a statewide day of prayer in Colorado and (until 2009) contained explicit biblical references-constituted an unconstitutional endorsement of religion that uniquely harmed Respondents by making them feel like political outsiders. Thus, Respondents asked the trial court to enjoin the Governor and his successors from issuing future Colorado Day of Prayer honorary proclamations and to declare the previously issued honorary proclamations unconstitutional. The Governor filed a Motion for Summary Judgment, and Respondents filed a Cross-Motion for Summary Judgment.

T4 In its Order on Summary Judgment, the trial court first addressed whether Respondents had standing as Colorado taxpayers to sue the Governor. Explaining that a plaintiff "must at least show some use of taxes generally" to establish taxpayer standing, the trial court concluded that Respondents did not have taxpayer standing because there was "no item in the State budget or any expenditure of tax monies relating to the issuance of the honorary proclamations." The trial court then considered whether Respondents had standing to sue as nonbelievers who were offended by the honorary proclamations as a result of Respondents' unavoidable exposure to extensive media coverage broadcasting the existence of the proclamations to Colorado citizens. Emphasizing that the honorary proclamations made Respondents "feel like political outsiders because they do not believe in the supposed power of prayer," the trial court found that Respondents had alleged an injury sufficient to establish individual standing. Nevertheless, the trial court ultimately concluded that the honorary proclamations did not violate the Preference Clause and granted summary judgment in favor of the Governor.

5 Respondents appealed, and the Governor cross-appealed. The court of appeals affirmed the trial court's standing determination on different grounds, holding that Respondents had standing to sue the Governor as Colorado taxpayers.⁸ Conducting an independent review of the record, the court of appeals determined that public funds were used to cover the following expenses associated with issuing the Colorado Day of Prayer honorary proclamations:

* the cost of materials and supplies to create paper proclamations for the Task Force and for any person who thereafter requested a copy;

® postal expenses for mailing the proclamations to the Task Force and to any person who thereafter requested a copy;

espace on the computer server that is used to store electronic copies of the proclamations; and

e salaries for members of the Governor's office who, as part of their duties, received, processed, created, and distributed the proclamations.

Freedom from Religion Found., 152. Although the court of appeals acknowledged that the exact amount of public funds at issue was "not clear," it nonetheless concluded that the Governor's use of any public funds to issue the honorary proclamations was sufficient to establish taxpayer standing. See id. at 11 56, 61. Reaching the merits of Respondents' substantive legal claim, the court of appeals reversed the trial court's Preference Clause determination and deemed the honorary proclamations unconstitutional. Id. at € 142.

T6 The Governor appealed, and we granted certiorari review.

II. Analysis

A. Standing in Colorado

17 We review de novo the court of appeals' determination that Respondents have standing to sue the Governor. See Barber v. Ritter, 196 P.3d 288, 245 (Colo. 2008). Standing is a jurisdictional prerequisite that can be raised any time during the proceedings. See Ainscough v. Owens, 90 P.3d 851, 855 (Colo.2004); Anson v. Trujillo, 56 P.3d 114, 117 (Colo.App.2002). Because "standing involves a consideration of whether a plaintiff has asserted a legal basis on which a claim for relief can be predicated," Bd. of Cnty. Comm'rs v. Bowen/Edwards Assocs., 830 P.2d 1045, 1052 (Colo.1992), the question of standing must be determined prior to a decision on the merits, see Atnscough, 90 P.3d at 855. If a court determines that standing does not exist, then it must dismiss the case. Wimberly v. Ettenberg, 194 Colo. 163, 168, 570 P.2d 535, 539 (1977).

18 In Wimberly, this Court articulated a two-prong test for determining whether a plaintiff can establish standing to sue. See id. at 168, 570 P.2d at 589. This test has become the routine test for assessing standing in Colorado. Brotman v. E. Lake Creek Ranch, LL.P., 31 P.3d 886, 890 (Colo. 2001) ("Because we have applied the Wimberly test in a variety of contexts, it has become our 'general' test for standing."); see, eg., Barber, 196 P.3d at 246-47 (applying the Wim-berly test to determine whether the plaintiffs had taxpayer standing).⁹ To satisfy the Wimberly test, a plaintiff must establish that (1) he suffered an injury in fact, and (2) his injury was to a legally protected interest. See Wimberly, 194 Colo. at 168, 570 P.2d at 539.

19 The first prong, the injury-in-fact requirement, maintains the separation of powers mandated by article III of the Colorado Constitution by preventing courts from invading legislative and executive spheres. Because judicial determination of an issue may result in disapproval of legislative or executive acts, this constitutional basis for standing ensures that judicial "determination may not be had at the suit of any and all members of the public" Wimberly, 194 Colo. at 167, 570 P.2d at 588 (quoting Ex-Cell-O Corp. v. City of Chicago, 115 F.2d 627, 629 (7th Cir.1940)); see also Ainscough, 90 P.3d at 855-56; Comrad v. City & Cnty. of Denver, 656 P.2d 662, 668 (Colo.1982). The injury-in-fact requirement also finds constitutional roots in article VI, section 1, under which Colorado courts limit their inquiries to the resolution of actual controversies. Bd. of Dirs., Metro Wastewater Reclomation Dist. v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, 105 P.3d 658, 655-56 (Colo.2005); City of Greenwood Vill. v. Petitioners for the Proposed City of Centennial, 8 P.8d 427, 436-87 (Colo.2000). In sum, the injury-in-fact requirement ensures that an actual controversy exists so that the matter is a proper one for judicial resolution. See Comrad, 656 P.2d at 668. The requirement ensures a "concrete adverseness" that sharpens the presentation of issues to the court. City of Greenwood Vill., 3 P.3d at 487. Thus, although both tangible injuries (e.g., physical damage) and intangible injuries (e.g., aesthetic deterioration of the environment) can satisfy the injury-in-fact requirement, "an injury that is overly 'indirect and incidental' to the defendant's action" will not convey standing, nor will the remote possibility of a future injury. Ainscough, 90 P.8d at 856; see- also Wimberty, 194 Colo. at 168, 570 P.2d at 589 (holding that the plaintiffs' "(indirect and incidental pecuniary injury" was insufficient to confer standing).

110 The second prong, the legally-protected-interest requirement, promotes judicial self-restraint. Conrad, 656 P.2d at 668. This prudential consideration recognizes "that unnecessary or premature decisions of constitutional questions should be avoided, and that parties actually protected by a statute or constitutional provision are generally best situated to vindicate their own rights." City of Greenwood Vill., 8 P.8d at 437. Claims for relief under the constitution, the common law, a statute, or a rule or regulation satisfy the legally-protected-interest requirement. Ainscough, 90 P.8d at 856.

111 Because Respondents' Preference Clause claim-which derives from article II, section 4 of the Colorado Constitution-clearly satisfies the second prong of the Wimberly test, our standing determination hinges on whether Respondents have alleged injuries-either as taxpayers or as individual nonbelievers-that satisfy the first prong. Thus, we begin our analysis by considering whether Respondents have suffered an injury as Colorado taxpayers that is sufficient to establish taxpayer standing. We next consider whether Respondents have suffered an injury as nonbelievers that is sufficient to establish individual standing.¹⁰ Because we determine that Respondents lack either form of standing, we dismiss their case without reaching the merits of Respondents' substantive legal claim.

B. Respondents Lack Taxpayer Standing

% 12 Unlike the United States Supreme Court's narrow view of taxpayer standing, this Court has consistently permitted broad taxpayer standing. Compare Ariz. Christian Sch. Tuition Org. v. Winn, -- U.S. --, 181 S.Ct. 1486, 1442, 179 L.Ed.2d 528 (2011) (explaining that "[albsent special cireumstances ... standing cannot be based on a plaintiff's mere status as a taxpayer"), with Ainscough, 90 P.3d at 856 (explaining that Colorado law allows for "broad taxpayer standing"). Although we have permitted a broad class of plaintiffs to have taxpayer standing, we have also utilized the injury-in-fact requirement to provide conceptual limits to the doctrine when plaintiffs challenge an allegedly unlawful government action.¹¹ For example, we have held that allegedly unlawful expenditures or transfers of public funds can constitute injuries sufficient to establish taxpayer standing. See, eg., Barber, 196 P.3d at 247 (determining that plaintiffs had "taxpayer standing to challenge the constitutionality of the transfers of money from the special funds to the state's General Fund and the concomitant expenditure of that money to defray general governmental expense, rather than to defray the cost of services provided to those charged" (emphasis added)); Dodge v. Dep't of Soc. Servs., 198 Colo. 379, 381-83, 600 P.2d 70, 71-72 (1979) (determining that plaintiffs had taxpayer standing to challenge an expenditure of public funds to finance nontherapeutic abortions). To satisfy the injury-in-fact requirement, however, the plaintiff must demonstrate a clear nexus between his status as a taxpayer and the challenged government action. See Barber, 196 P.3d at 246 (explaining that an injury that is "overly indirect and incidental" to the challenged government action will not convey taxpayer standing (internal quotation marks omitted)).

T13 We most explicitly articulated this nexus requirement in Brotman. In that case, we considered whether an adjacent landowner had taxpayer standing to challenge the State Board of Land Commissioners' decision to sell a parcel of school land to a third-party purchaser. 31 P.8d at 888-89. Emphasizing that "income generated from the Land Board's management of school lands [was] distinct from and in addition to income generated through taxation for sehools"-and thus did not affect the amount of tax revenue spent on schools-we concluded that the Land Board's decision to sell the school land had "no effect" on the landowner as a taxpayer. Id. at 892. Absent the requisite nexus between the landowner's status as a taxpayer and the challenged sale of land, we determined that the landowner did not have taxpayer standing. Id.

14 Turning to the case at hand, Respondents allege in their complaint that they are Colorado taxpayers. But they do not assert any injury based on an unlawful expenditure of their taxpayer money, nor do they allege that their tax dollars are being used in an unconstitutional manner. Indeed, the trial court expressly found that is no item in the State budget" relating to the issuance of the challenged proclamations and concluded that there was "no expenditure of public funds in this case."

15 Respondents nevertheless argue that they bave suffered an injury sufficient to establish taxpayer standing because the Governor used public funds in the course of issuing the allegedly unconstitutional honorary proclamations. Even assuming that the Governor used public funds to pay for the paper, hard-drive space, postage, and personnel necessary to issue one Colorado Day of Prayer proclamation each year, such incidental overhead costs are not sufficiently related to Respondents' financial contributions as taxpayers to establish the requisite nexus for standing.¹² If such costs were sufficient to confer taxpayer standing, any and all members of the public would have standing to challenge literally any government action that required the use of a computer, basic office supplies, or state employee time. Article III of the Colorado Constitution and our precedent do not permit this expansive result. Accordingly, we hold that Respondents have not alleged an injury sufficient to establish taxpayer standing.

C. Respondents Lack Individual Standing

116 Although we reverse the court of appeals' determination that Respondents have taxpayer standing, our standing inquiry is not limited to the specific basis for standing that the court of appeals considered. See Moody v. People, 159 P.3d 611, 616 (Colo.2007) (recognizing that appellate courts have authority to address standing issues sua sponte if there is a sufficient factual record upon which to resolve the issue). Thus, we next consider whether Respondents have individual standing, the only other viable basis for standing in this case, based on their alleged psychic harm as nonbelievers who were exposed to media coverage of the Colorado Day of Prayer honorary proclamations.

117 Like taxpayer standing, Colorado courts provide for broad individual standing. See Ainscough, 90 P.8d at 856 (explaining that Colorado's test for standing "has traditionally been relatively easy to satisfy"). Despite our tradition of conferring individual standing to a broad class of plaintiffs, id. at 853, we have refused to permit individual standing when the alleged injury is indirect and incidental to the defendant's conduct. For example, in Wimberly we considered whether the bail-bondsmen plaintiffs had individual standing to sue the Denver District Court for adopting a pretrial release program that allowed criminal defendants to choose among a greater number of bail alternatives. 194 Colo. at 165, 168, 570 P.2d at 537, 589. Emphasizing that the possible injury to the bail bondsmen's business was "indirect and incidental" to the court's adoption of the release program, we concluded that the bail bondsmen did not have standing to sue. Id. at 168, 570 P.2d at 589.

{18 Respondents argue that they have suffered an injury as nonbelievers that is sufficient to establish individual standing because they were exposed to unavoidable and extensive media coverage revealing the existence of the honorary proclamations. Specifically, Respondents allege that the challenged proclamations amount to "[eJxhortations to pray" that promote and endorse religion in violation of the state constitution, and that the Governor's designation of a Day of Prayer "create[s]l a hostile environment for non-believers" who are "made to feel as if they are political outsiders." Importantly, however, Respondents do not allege that the government coerced them to participate in the Colorado Day of Prayer, nor that they suffered any negative consequences at the hands of the government as a result of their non-participation, nor that the government prevented them from exercising their right to nonbelief In short, although Respondents allege that the Governor violated the Colorado Constitution, they "fail to identify any personal injury suffered by them as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one disagrees." Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, 454 U.S. 464, 485, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982).

19 Although we do not question the sine-erity of Respondents' feelings, without more, their cireuitous exposure to the honorary proclamations and concomitant belief that the proclamations expressed the Governor's preference for religion is simply too indirect and incidental an injury to confer individual standing. To hold otherwise would render the injury-in-fact requirement superfluous, as any person who learned of a government action through the media and felt politically marginalized as a result of that secondhand media exposure would have individual standing to sue the government. Because such a result would stretch our already broad conceptualization of individual standing beyond recognition and thrust the judiciary beyond its article III limits, we hold that Respondents have not alleged an injury sufficient to establish individual standing.

III Conclusion

20 Respondents do not have standing to sue the Governor for issuing annual Colorado Day of Prayer honorary proclamations. First, we hold that the use of public funds to cover the incidental overhead costs associated with issuing the honorary proclamations does not, by itself, constitute an injury sufficient to establish taxpayer standing. Second, we hold that the psychic harm endured by Respondents as a result of media coverage revealing the existence of the honorary proclamations does not, by itself, constitute an injury sufficient to establish individual standing. Accordingly, we reverse the judgment of the court of appeals. Because Respondents' failure to establish standing is fatal to their substantive legal claim, we remand to the court of appeals with instructions to return the case to the trial court for dismissal.

JUSTICE HOOD dissents, and JUSTICE HOBBS joins in the dissent.

1 . Specifically, we granted certiorari to review the following issues:

1. Whether the court of appeals erred by sua sponte determining that [Respondents] had taxpayer standing based on de minimis governmental expenditures and despite [Respondents'] failure to plead or demonstrate the existence of taxpayer standing in the district court.

Whether the court of appeals erroneously concluded that the state constitution forbids the governor of Colorado from issuing certain honorary proclamations. Because we hold that Respondents do not have standing to sue the Governor, we need not address the second issue, which goes to the merits of Respondents' substantive legal claim.

2 . The facts presented in this section are based on the parties' stipulations and facts reported by the trial court and the court of appeals that are not disputed.

3 . For example, in 2007, 2008, and 2009, the governors of all fifty states issued honorary proclamations or letters acknowledging days of prayer.

4 . Honorary proclamations are official documents issued by the Governor's Office that contain the Governor's seal and signature but that do not have the force or effect of law. The Governor issues hundreds of honorary proclamations every year to recognize a broad array of events and organizations. Although the Governor's Office occasionally denies a request for an honorary proclamation, the large majority of requests are granted. Once issued, the Governor's Office typically does not promote or publicize the honorary proclamations, nor does it track or restrict their use.

5 . The Task Force is a private, nonprofit organization that promotes Judeo-Christian values and requests prayer proclamations from every state governor on an annual basis.

6 . In 2007, then-Governor Bill Ritter Jr. attended this public event, where he read aloud the 2007 honorary proclamation and addressed the audience. Ritter's attendance at this event, however, is irrelevant to our analysis for two reasons. First, the only government action that Respondents squarely challenge is successive governors' issuance of honorary proclamations from 2004 through 2009, not one governor's attendance at a public event celebrating the Colorado Day of Prayer. Second, none of the Respondents attended this event (nor any other Colorado Day of Prayer event), and they do not allege that they experienced unique harm as a direct result of Ritter's attendance at the 2007 event.

7 . Governor Hickenlooper did not actually issue any of the challenged honorary proclamations; then-Governor Bill Owens issued the 2004-06 honorary proclamations, and then-Governor Rit-ter issued the 2007-09 honorary proclamations. Because Governor Hickenlooper is being sued in his official capacity as the current Governor of Colorado, we hereafter attribute his predecessors' actions to him. Although the parties agree that the Governor issued a Colorado Day of Prayer honorary proclamation in 2010, the court of appeals did not address this specific proclamation because the parties did not provide a copy of it in the appellate record. Like the court of appeals, we only consider the proclamations from 2004 through 2009.

8 . Because the court of appeals determined that the Colorado members-all of whom resided in Colorado-had standing to sue, it did not separately address whether the Foundation-a nonprofit corporation based in Wisconsin and registered to do business in Colorado-had standing. See Freedom from Religion Found., 160 ("We need not further decide whether [the Foundation] has standing because it raises claims that are identical to the [Colorado members'] claims."). The Foundation has not raised a separate basis for standing before this Court, so we consider Respondents' collective standing based only on the Colorado members' standing.

9 . In some circumstances we have applied a specialized test for standing in lieu of the Wimberly test. See, eg., McCroskey v. Gustafson, 638 P.2d 51, 54-56 (Colo.1981) (affirming the court of appeals' departure from Wimberly and adopting its test for determining whether a taxpayer has derivative standing to bring an action on behalf of a municipality). We see no circumstances that would lead us to deviate from Wimberly in this instance.

10 . We use the term individual standing to denote standing that flows from a direct and individualized injury to the plaintiff. Importantly, individual standing is distinct from "taxpayer standing," which flows from an "economic interest in having [the taxpayer's] tax dollars spent in a constitutional manner." Conrad, 656 P.2d at 668; see also Brotman, 31 P.3d at 892 (holding that the plaintiff lacked taxpayer standing because the defendant's action had "no effect on the [plaintiff] as a taxpayer"); Nicholl v. E-470 Pub. Highway Auth., 896 P.2d 859, 866 (Colo.1995) (noting that "taxpayers have standing to seek to enjoin an unlawful expenditure of public funds"). So-called "citizen standing," under which a citizen has standing to challenge the "actual form of government" under which he is required to live, is not at issue here. See, eg., Colo. State Civil Serv. Emps. Ass'n v. Love, 167 Colo. 436, 442-44, 448 P.2d 624, 626-27 (1968) (determining that plaintiffs had standing to.challenge a legislative act reorganizing the departments of state government); Howard v. City of Boulder, 132 Colo. 401, 403-04, 290 P.2d 237, 238 (1955) (determining that plaintiffs had standing to challenge an initiated charter amendment changing the method of electing Boulder city councilmen from an election at large to an election from geographically created councilmanic districts). , -

11 . We limit our analysis of taxpayer standing here to suits against the government, which can trigger direct taxpayer standing, as opposed to suits on behalf of the government, which can trigger derivative taxpayer standing. See McCros-key, 638 P.2d at 56 (establishing the doctrine of derivative taxpayer standing).

12 . This case is therefore unlike the facts in Conrad, in which the City of Denver formally appropriated funds for the storage and display of a life-sized nativity scene on the steps of its City and County Building as part of the building's Christmas holiday decorations. 656 P.2d at 667.