dissenting:
I respectfully dissent from the majority opinion and join the dissent of Justice Quinn.
The majority test for taxpayer standing has two requirements. First, the plaintiff-taxpayers must establish “that the municipality itself has the right and power to bring the action,” and that the demand on the municipality to bring suit has been refused. Second, “that the taxpayer is bringing the action in a case in which the municipal corporation has the discretion to bring the action, but has refused to do so because of fraud, collusion, bad faith, or ultra vires acts by the corporation, ... or in which the municipality has a specifically enjoined non-discretionary duty to bring the action but has failed to do so.” See McCroskey v. Gustafson, Colo.App., 611 P.2d 984, 987 (1980).
In my opinion, the majority has charted a course which imposes an impossible burden on a plaintiff-taxpayer who brings a class action pursuant to C.R.C.P. 23. I concede that the first requirement imposed by the majority is sound and is a proper require*57ment to establish standing. However, I take exception to the second requirement. Fraud, collusion, bad faith, or ultra vires acts by the municipality, if such exists, will be known to the municipality, its officers and employees, but the facts establishing misconduct will be beyond the reach of the taxpayer in most instances. C.R.C.P. 11 requires that when a lawyer files a pleading, his signature constitutes a certificate by him that he has read the pleadings and that, to the best of his knowledge, information, and belief, there are good grounds to support it. A lawyer, therefore, would be required, if he pled fraud, collusion, or bad faith, to have factual knowledge of the reasons behind the failure of the city to affirmatively exercise a discretionary right before a complaint could be filed.
The majority recognizes that we are foreclosed from addressing the merits of the controversy before us in determining the issue of standing. Wimberly v. Ettenberg, 194 Colo. 163, 570 P.2d 535 (1977). All that lies before us for resolution is whether the plaintiff-taxpayers, looking to the class action provisions of C.R.C.P. 23, have the requisite standing to have the court consider their claim. It is inconceivable to me that the fact would be available to establish that a municipality was guilty of fraud, collusion, or bad faith in failing to file a discretionary action on behalf of a municipality. Ferch v. Hansen, 115 Colo. 366, 174 P.2d 719 (1946); Howard v. City of Boulder, 132 Colo. 401, 290 P.2d 237 (1955); Dodge v. Department of Social Services, 198 Colo. 379, 600 P.2d 70 (1979), all indicate that the plaintiffs had standing in this case.
In my view, standing is a threshold requirement that should not be so burdensome as to deny bona fide plaintiffs access to the court to enforce legitimate and legally cognizable grievances. In this case the district court recognized that the plaintiffs had standing to bring this action and reviewed the merits and concluded that summary judgment should issue for the defendants. In denying the plaintiffs access to the court, we have drawn too fine a line.
Accordingly, I join in the dissent filed by Justice QUINN.