Opie v. Denver Classroom Teachers Ass'n

STERNBERG, Judge,

concurs in part and dissents in part.

I agree with part two of the majority opinion holding that the plaintiffs failed to state a claim for relief in their allegation that requiring them to follow the revocation procedure to avoid payment of dues violates their rights to freedom of association and expression. However, I disagree with part one of the majority opinion, and therefore dissent to that portion of the opinion.

I would hold that the plaintiffs did have standing under the Uniform Declaratory Judgment Act to seek relief for the possibility that their compensation will be diminished without due process of law. In CF & I Steel Corp. v. Colorado Air Pollution Control Commission, 199 Colo. 270, 610 P.2d 85 (1980), it was held that this court’s restrictive view of the right to bring a declaratory judgment action was in error. Under the rule of that case, I believe that plaintiffs have standing to seek relief in the nature of a declaratory judgment on this claim. See also State Board for Community Colleges & Occupational Education v. Olson, 687 P.2d 429 (Colo.1984).

As to this claim, the plaintiffs, in my view, have met the standing requirements of Wimberly v. Ettenberg, 194 Colo. 163, 570 P.2d 535 (1977). In Dodge v. Department of Social Services, 198 Colo. 379, 600 P.2d 70 (1979), the court held that although there is no direct economic injury in fact, the plaintiff’s had standing because of their interest in ensuring that the organization of government conforms to the constitution of the state and they claimed a violation of the Civil Service Amendment and thus a taxpayer was found to have alleged an “injury in fact” in attacking wrongful expenditures of public funds. Here too the plaintiffs have standing to allege that the potential reduction in their salaries is viola-tive of § 22-63-105, C.R.S.,. authorizing school boards to adopt salary schedules. See also Cloverleaf Kennal Club Inc., v. Colorado Racing Commission, 620 P.2d 1051 (Colo.1980) (“the injury in fact conferring standing may not only be intangible, ... ‘but may exist solely by virtue of statutes creating legal rights the invasion of which creates standing.’ ”).

For these reasons I would reverse, in part, the judgment of the trial court and would permit the plaintiffs to proceed on their claims alleging diminished compensation in violation of statutory requirements.