concurring in part and dissenting in part.
I concur with parts II and III(D) of the majority opinion. I respectfully dissent from part III(C), in which the majority concludes that the Taxpayers have standing to challenge transfers from the special funds into the general fund. I do not agree with the majority's conclusion that the Taxpayers have standing in this case because I conclude they have not alleged an injury in fact and because they lack standing to assert the claims of third parties. Given these conclusions, I would not reach the merits and therefore express no opinion about part IV of the majority opinion.
I. Injury in Fact
The requirement that a plaintiff demonstrate an injury in fact derives from the constitutional separation of powers between the executive, legislative, and judicial branches of government, and prevents the judiciary from usurping the powers of other branches. *780See Conrad v. City & County of Denver, 656 P.2d 662, 668 (Colo.1982); Wimberly v. Ettenberg, 194 Colo. 163, 167, 570 P.2d 535, 538 (1977); see also Colo. Const. art. III.
Another division of this court has noted that suits in which a plaintiff alleges no personal "injury or cognizable legal interest," but instead claims standing based solely on his or her taxpayer status are "problematic." Olson v. City of Golden, 53 P.3d 747, 750 (Colo.App.2002). "Suits such as these highlight the tension between the judiciary's limit ed powers and its role as a check on the coordinate branches of government. They tempt the courts to overlook prudential limitations on standing, rooted in the separation of powers, in order to redress otherwise non-justiciable wrongs." Olson, supra, 53 P.3d at 750 (quoting Dodge v. Dep't of Soc. Servs., 198 Colo. 379, 384, 600 P.2d 70, 73 (1979) (Dubofsky, J., specially concurring)). This is one of those suits.
A proper determination of standing begins with a careful reading of the complaint. Here, the Taxpayers allege only that they pay taxes, and that the legislature has unconstitutionally transferred money from special funds to the general fund. In fact, with the exception of the claims discussed in parts II and III(D) of the majority's opinion, the Taxpayers do not allege that the transfers caused them a tangible or intangible harm, or otherwise invaded their legal rights.
In a similar case, the United States Supreme Court recently determined that plaintiffs who alleged no individual harm lacked standing to challenge the Colorado Supreme Court's interpretation of article V, § 44 of the Colorado Constitution, even though they alleged the interpretation violated the Elections Clause of the United States Constitution, art. I, § 4, el. 1. The Court noted:
[T'lhe problem with this allegation should be obvious: The only injury plaintiffs allege is that the law-specifically the Elections Clause-has not been followed. This injury is precisely the kind of undifferentiated, generalized grievance about the conduct of government that we have refused to countenance in the past.... Because plaintiffs assert no particularized stake in the litigation, we hold that they lack standing to bring their Elections Clause claim.
Lance v. Coffman, - U.S. -, -, 127 S.Ct. 1194, 1198, 167 L.Ed.2d 29 (2007) (per curiam). I find no compelling distinction between the generalized nature of the allegations made by the Taxpayers in this case and those made by the plaintiffs in Lance.
Thus, even accepting the Taxpayers' allegations as true, they do not satisfy the injury in fact requirement. See Ainscough v. Owens, 90 P.3d 851, 856 (Colo.2004) (plaintiff has standing so long as he or she "argues that a governmental action that harms him [or her] is unconstitutional" (emphasis added)); see also Lance, supra; Brotman v. E. Lake Creek Ranch, L.L.P., 31 P.3d 886, 891-92 (Colo.2001) (plaintiff lacked standing because it did not allege the defendant "unlawfully spent any taxpayer funds," or that defendant's management decisions had any effect on it "as a taxpayer").
I disagree with the majority's approach because it conflates the injury in fact and legally protected interest requirements. The majority concludes the Taxpayers have standing because they "have an interest in having general tax dollars spent in compliance with Colo. Const. art. XI, §§ 8 and 4." However, this interest satisfies only the see-ond portion of the standing inquiry, that plaintiffs demonstrate a "legally protected interest," Wimberly, supra, 194 Colo. at 168, 570 P.2d at 539, and is insufficient, by itself, to confer standing upon the Taxpayers. See Ainscough, supra.
I also disagree with the majority's conclusion because here the Taxpayers do not challenge an expenditure of general tax dollars, but only a transfer from special funds to the general fund; therefore, even under the majority's analysis, they should not have standing. Cf. Conrad, supra (recognizing taxpayer standing to challenge unlawful expenditures); Dodge, supra (same); Brotman, supra, 31 P.3d at 891 (noting that the question decided in Dodge was narrow, namely, the circumstances allowing taxpayers "to challenge an allegedly unlawful expenditure of public funds").
While I agree that Heggem-Lundquist lacks standing in this case, I respectfully *781suggest that the majority's conclusion regarding Heggem-Lundquist exposes the flaws in its analysis. Heggem-Lundquist asserts standing not only based upon individual economic harm, which as the majority correctly notes is too indirect and speculative to confer standing, but also as a taxpayer challenging transfers from the major medical fund, subsequent injury fund, workers' compensation cash fund, and other funds as unconstitutional. The majority concludes that Heggem-Lundquist lacks individual standing. This conclusion is at odds with the majority's conclusion that the Taxpayers have standing to challenge an unconstitutional transfer of funds. Heggem-Lundquist alleges it is a taxpayer and, under the majority's approach, should have standing to challenge as unconstitutional transfers from the major medical fund, the subsequent injury fund, and the workers' compensation cash fund. The majority's conclusion that Heggem-Lundquist lacks individual standing cannot be reconciled with its conclusion that the Taxpayers have standing in this case.
IL Third-Party Standing
The Taxpayers also lack standing because they raise the claims of third parties without standing to do so.
A party raising a constitutional challenge generally may not assert "the claims of third parties who are not involved in the lawsuit." City of Greenwood Village v. Petitioners for Proposed City of Centennial, 3 P.3d 427, 439 (Colo.2000) (a party "must demonstrate not only that the alleged unconstitutional feature of the statute injures him [or her] but also that he [or she] is within the class of persons with respect to whom the act is unconstitutional" (quoting Miller v. Albright, 523 U.S. 420, 446, 118 S.Ct. 1428, 1443, 140 L.Ed.2d 575 (1998)(O'Connor, J., concurring))). Three exeeptions to this rule exist where (1) the party before the court has a "substantial relationship" with the third party whose rights are asserted; (2) the third party's assertion of its own rights would be difficult or improbable; or (8) the third party's rights would be diluted if standing were denied. City of Greenwood Village, supra, 3 P.3d at 439.
The Taxpayers do not allege that they are required to pay into the special funds, or that there is any other connection between them as taxpayers and those funds. Persons required to pay into the special funds, not the Taxpayers, are the aggrieved parties that would have standing to contest the government's allegedly unlawful transfers from those funds. See Hughey v. Jefferson County Bd. of Comm'rs, 921 P.2d 746 (Colo.App.1996). Though asserting the rights of these third parties, the Taxpayers do not allege that they have a substantial relationship with the third parties, that the third parties would have a difficult time asserting their own rights, or that their rights would be diluted if the Taxpayers were denied standing. Accordingly, in my view the Taxpayers lack standing to challenge transfers from the special funds. See City of Greenwood Village, supra.
Because the Taxpayers do not allege an injury in fact, their claims are improper for judicial review. See Conrad, supra; Wimberly, supra; Olson, supra. Instead, the Taxpayers' remedy is with the legislative branch of government, which is better suited to deal with "abstract questions of wide public significance." See Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 2205-06, 45 L.Ed.2d 343 (1975) ('Without such limitations ... the courts would be called upon to decide abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights.")(citing Schlesinger v. Reservists Comm. to Stop War, 418 U.S. 208, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974)).
Because the Taxpayers' allegations, even if accepted as true, are insufficient to demonstrate they suffered an injury in fact or to permit them to raise the claims of third parties, I disagree with the majority's conclusion that the Taxpayers have standing in this case. Therefore, I respectfully dissent.