What To Expect After Colo. Nixes Special Standing Rules
By John Crisham (November 16, 2023), Law360
On Oct. 16, the Colorado Supreme Court issued decisions in two companion cases — Colorado State Board of Education v. Adams County School District 14,[1] and Weld County Board of County Commissioners v. Ryan[2] — abandoning the long-standing, judicially crafted "rule of Martin" and "political subdivision doctrine."
Together, those rules have for decades been applied by courts to preclude standing for a political subdivision of the state or a state official from challenging in court a decision made or action taken by another government entity "when (1) the state agency, political subdivision, or official seeking review is subordinate to the governmental entity whose action is challenged; and (2) no statutory or constitutional provision expressly authorizes the subordinate party to seek judicial review of the superior government entity's action."[3]
The Two-Pronged Test
A number of positive and negative risks are apparent for Colorado litigants and the lawyers who represent them.
These two cases present interesting, albeit distinct, facts.
In the first, an Adams County School District sued the State Board of Education over its decision to remove its accreditation and order its reorganization. And in the other, the Weld County Board of Commissioners sued the Colorado Air Quality Control Commission challenging rules adopted to minimize emissions of certain pollutants from oil and gas wells.
And while the factual allegations differed, the threshold jurisdictional issue presented did not, leading the lower courts in both cases to dismiss them for want of standing.
After consolidating the cases, the Supreme Court held that the "political subdivision doctrine and its articulation in the rule of Martin have generated unnecessary confusion," and that those doctrines are "ultimately duplicative of the two-part test for standing set forth in Wimberly v. Ettenberg,"[4] which the Colorado Supreme Court decided in 1977, and ultimately "abandon[ed] the doctrine and the rule of Martin."
In so doing, the court instructed that Wimberly's generally applicable test for standing is the sole measure for determining whether any party — including a political subdivision, a school district or an individual government official — has standing to sue in Colorado's state courts.
In the wake of this decision, the court confirmed, it is now the rule in Colorado that "subordinate state agencies, political subdivisions, and officials raising claims challenging a government entity's decision need not satisfy any additional specialized standing test."[5]
The Supreme Court began its analysis with an overview of the two-pronged Wimberly test for standing, noting that that test has applied in Colorado courts for more than 45 years.[6] A plaintiff can establish standing "under Wimberly … [by] show[ing] 'injury in fact to a legally protected interest as contemplated by statutory or constitutional provisions.'"[7]
This test requires establishing both the constitutional prong of an injury in fact, and the prudential one. The first of these prongs itself serves two purposes. First, it is faithful to the limitation inherent in Article VI, Section 1 of the Colorado Constitution restricting courts to resolving actual controversies. And second, it reflects fundamental principles of the separation of powers, by which courts are prevented from invading exclusively legislative or executive spheres of authority.[8]
The second prong, meanwhile, serves to ensure that the legal challenges to be decided by Colorado's courts are brought by those who have suffered an invasion of their legally protected interests.
The court then turned to the political subdivision doctrine and the rule of Martin.
Tracing the history underlying the historical reasoning as early as the turn of the 20th century that led to that in the cases of Board of County Commissioners v. Love and Martin v. District Court, decided in 1970 and 1976 respectively, the court explored the dozens of decisions in which courts applied the principle to individual government officials, on the ground that a "government official cannot challenge a statute or agency directing the official to fulfill ministerial duties."[9]
As the court explained, the doctrine has been expanded over time to apply to cases brought by school districts and political subdivisions — with the exception of home-rule cities — and while that progression may have possessed some sound grounding and may have "reinforce[d] key standing principles," the deeper doctrinal problem had become clear.
In short, "the doctrine as articulated in Love and Martin was never directly supported by the precedent on which it claimed to rely."[10] In light of the fact that the doctrine had led to widespread confusion among the Colorado courts, and that it was "essentially subsumed by the legally protected interest prong of the two-part Wimberly test," the Supreme Court decided that "it [would be] best to abandon the doctrine and the rule as unnecessarily duplicative."[11]
Looking Forward
Given its novelty, identifying the ultimate fruits of the Supreme Court's decision to repudiate the rule of Martin and the political subdivision principle will remain to be seen. But for present purposes, the court's decision could bring about at least an admixture of results.
First, these cases will likely lead to a further synthetization and clarification of the standing doctrine applicable to Colorado litigants — a result that provides clearer expectations and understanding for those government entities looking to challenge other government action.
Second, the court's decisions may open the door to additional legal challenges between government entities, which could be a positive result for the state's citizens and taxpayers.
Third, though, abandoning the rule of Martin and the political subdivision doctrine may ultimately lead to an erosion of the structure of the two-part Wimberly test itself, insofar as it seems to create the potential for the courts to decide what are likely political questions committed to other branches.
In the end, whether any or all of these results will in fact realize themselves remains to be seen. But in the short term, these decisions should make clear to governmental litigants and the lawyers who represent them that the time to heed this important doctrinal shift is now.
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The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] Colorado State Board of Education v. Adams County Sch. Dist. 14, 2023 CO 52.
[2] Weld County Colorado Board of County Commissioners v. Ryan, 2023 CO 54.
[3] Adams Co. Sch. Dist., 2023 CO 52, at ¶1.
[4] Wimberly v. Ettenberg, 570 P.2d 535, 539 (Colo. 1977).
[5] Adams Co. Sch. Dist., 2023 CO 52, at ¶2. [6] Id. at ¶21.
[7] Id. (quoting Wimberly, 570 P.2d at 539).
[8] Id. at ¶22 (citing City of Greenwood Vill. v. Petitioners for Proposed City of Centennial, 3 P.3d 427, 438 (Colo. 2000) and Hickenlooper v. Freedom from Religion Found. Inc., 339 P.3d 1002 (Colo. 2014)).
[9] Id. at ¶26 (citations omitted).
[10] Id. at ¶40.
[11] Id. at ¶41 (citations omitted).
