Taxpayers for Public Education v. Douglas County School District

JUSTICE MARQUEZ,

concurring in the judgment.

158 I respectfully disagree with the Part II majority1 that Petitioners lack taxpayer standing to pursue their claim that the Choice Scholarship Program ("CSP") violates the Public School Finance Act of 1994 ("the Act"), §§ 22-54-101 to -185, C.R.S. (2014). It is uncontested that Petitioners have taxpayer standing to raise their state constitutional challenges. Although the majority acknowledges 'that Colorado permits "broad taxpayer standing," the majority nevertheless concludes that Petitioners categorically lack taxpayer standing to raise their statutory claims. Maj. op, 122. Yet I perceive no principled basis in our case law to draw distinctions between a taxpayer's standing to bring a statutory claim as opposed to a constitutional claim. Whether the expenditure allegedly runs afoul of a constitutional or a statutory provision, in the context of taxpayer standing the core legal interest at stake is identical: It is the taxpayer's economic interest in ensuring that his tax dollars are expended in a lawful manner.

€54 I would hold that Petitioners have alleged sufficient injury in fact to «establish taxpayer standing to challenge the alleged unlawful expenditure of funds under the Act. On the merits, I conclude that the CSP violates the Act by funneling public funds through a nonexistent charter school to finance private education. Because I would resolve this case in favor of Petitioners on statutory grounds, I respectfully concur in the judgment only.

I. Taxpayer Standing

155 Standing is a threshold jurisdictional issue that plaintiffs must satisfy before a court may decide a case on the merits. Ainscough v. Owens, 90 P.3d 851, 855 (Colo.2004). The purpose of the standing analysis is to test a particular litigant's right to raise a legal argument or claim. City of Greenwood Vill. v. Petitioners for the Proposed City of Centennial, 3 P.3d 427, 436 (Colo.2000).

56 To establish standing under Colorado law, a plaintiff must satisfy two criteria: First, the plaintiff must have suffered an injury in fact, and, second, this harm must have been to a legally protected interest. *476Ainscough, 90 P.3d at 855 (citing Wimberly v. Ettenberg, 194 Colo. 163, 570 P.2d 535, 539 (1977).

157 We have characterized the "legally protected interest" requirement as a "prudential rule of standing based on judicial self-restraint." Conrad v. City & Cnty. of Denver, 656 P.2d 662, 668 (Colo.1982); see also Hickenlooper v. Freedom from Religion Found., Inc., 2014 CO 77, ¶ 10, 338 P.3d 1002, 1007 (stating that the legally protected interest prong of the standing inquiry "promotes judicial self-restraint"). In describing this prong in Wimberly, we referred to a "legally protected interest as contemplated by statutory or constitutional provisions." 570 P.2d at 589. Thus, a "legally protected interest" may be a tangible or intangible interest that rests in property, arises out of contract, lies in tort, or is conferred by constitutional or statutory provisions. See Barber v. Ritter, 196 P.3d 238, 246 (Colo.2008).

1 58 Yet where a plaintiff asserts taxpayer standing, the interest at stake is anchored in his status as a taxpayer. Because the taxpayer has (by definition) paid taxes that flow into a pool of public funds, the taxpayer has an "economic interest in having his tax dollars spent in a [lawful] manner." Conrad, 656 P.2d at 668. Thus, a taxpayer asserts injury in fact to a legally protected interest when he challenges the allegedly unlawful expenditure of public funds to which he has contributed by his payment of taxes.

T59 In this case, the majority assumes without deciding that Petitioners have alleged an injury in fact, although it never identifies the nature of the injury. Maj. op. T 14. The majority then concludes, however, that under Allstate Insurance Co. v. Parfrey, 880 P.2d 905 (Colo.1992), Petitioners' unidentified injury does not implicate any legally protected interest because the General Assembly did not intend to create a private right of action under the Public School Finance Act. Maj. op. 1919, 28. But this court's Parfrey test was designed to determine "whether a private tort remedy is available against a nongovernmental defendant for violating a statutory duty," and its factors reflect this aim. See 880 P.2d at 911. The Parfrey test is wholly inapposite in this context. Petitioners are not suing a private party seeking damages for an alleged private wrong; rather, they are taxpayers suing the government seeking declaratory and injune-tive relief for the unlawful expenditure of their tax dollars. See Dodge v. Dep't of Soc. Servs., 198 Colo. 379, 600 P.2d 70, 71 (1979). Because the majority uses the wrong test for standing, it reaches the wrong result.

T 60 In Parfrey, insureds sued their insurer alleging violations of the insurer's statutory duty to offer certain uninsured/underin-sured motorist coverage. 880 P.2d at 906. At issue was whether the statute afforded the insured a private civil tort remedy. Id. at 910. We held that a statute confers a private remedy against a nongovernmental defendant where three factors are met: (1) the plaintiff is "within the class of persons" intended to benefit from the statute; (2) "the legislature intended to create, albeit implicitly, a private right of action"; and (8) the implied civil remedy would be "consistent with the purposes of the legislative scheme." Id. at 911. As the majority recognizes, the aim of the Parfrey test is to discover and give effect to the will of the legislature-the Parfrey factors "revolve around the touchstone of legislative intent." Maj. op. 115 n. 9. Thus, whether a plaintiff may sue a private party for damages for a private wrong under a statute turns on whether the legislature intended to allow such recourse as part of the statutory scheme.

161 However, where a taxpayer seeks to enjoin the government's unlawful expenditure of public funds, we have never demanded a showing that the legislature authorized a private right of action to seek such relief. Rather, for a century, this court has recognized that an individual taxpayer generally may sue to enjoin "the misapplication of public funds from the state treasury." Leckenby v. Post Printing & Publ'g Co., 65 Colo. 443, 176 P. 490, 492 (1918).

162 All agree that Petitioners have taxpayer standing to assert their claims that the CSP violates certain provisions of the Colorado Constitution. See maj. op. 122 n. 12. After all, Petitioners have asserted an injury in fact-misapplication of public funds-to their legally protected economic interest in *477having their tax dollars spent in a lawful manner. See Hickenlooper, ¶ 12, 338 P.3d at 1007. But I perceive no principled basis in our case law for the majority to distinguish between taxpayer standing to bring suit to enjoin expenditures of public funds in violation of the Colorado Constitution and taxpayer standing to bring suit to enjoin expenditures of public funds in violation of a statute. See maj. op. 122. The injury to the taxpayers' economic interest in having their tax dollars spent in a lawful manner is identical. The majority reasons simply that the doe-trine "typically" applies to alleged "constitutional violations" and claims that to recognize Petitioners' standing to enforce the Act would be to "endorse [a] broad and novel conception of taxpayer standing." Id. (emphasis in original). But in Colorado, taxpayers have long had the right to bring suit to enjoin the expenditure of public funds in violation of a statute. See Packard v. Rd. of Cnty. Comm'rs, 2 Colo. 338, 339, 350 (1874) (recognizing the right of "resident tax payers" "to resort to equity to restrain ... misapplication of public funds" under state statute); see also Johnson-Olmsted Realty Co. v. City & Cnty. of Denver, 89 Colo. 250, 1 P.2d 928, 930 (1931) (acknowledging taxpayer's right to sue to enjoin expenditures under a city charter).

T 63 More recently, in Dodge, we held that individual taxpayers had standing to enjoin the use of public funds for nontherapeutic abortions on grounds that the state lacked statutory authority to do so. 600 P.2d at 71-72. The majority suggests that Dodge is distinguishable because the plaintiffs there "did not argue that the government had violated a particular statute; rather, they claimed that no statute authorized the government's behavior." Maj. op. 122 n. 13 (emphasis in original). But, for purposes of standing, such a distinction is illusory. An expenditure of public funds may be deemed "unlawful" whether made in violation of an express statutory provision or in the absence of statutory authorization.

T 64 In sum, I perceive no principled basis in our case law to limit taxpayer standing to claims based on alleged violations of the constitution. The taxpayer's economic interest in ensuring that his tax dollars are spent in a lawful manner does not somehow change or cease to exist where the expenditure instead runs afoul of a statute (or lacks statutory authorization). The majority's suggestion that to recognize Petitioners' standing to en-foree the Act would be to endorse a "novel conception of taxpayer standing," maj. op. 122, ignores this court's holding in Dodge and our earlier case law on which it relied. See 600 P.2d at 71 (citing Johnson-Olmstead, 1 P.2d 928; Leckenby, 176 P. 490; Packard, 2 Colo. 338).

II. Petitioners Have Taxpayer Standing to Challenge Alleged Violations of the Public School Finance Act

165 I would hold that Petitioners in this case have taxpayer standing to challenge the alleged violations of the Act. Petitioners are nonprofit corporations and individuals: parents of children in Douglas County's public schools, citizens concerned with public education, and, most importantly, Colorado taxpayers. Petitioners contend that the Douglas County School District lacks statutory authority to receive public funds under the Act for public school pupils and to redirect those monies to fund private school education under the auspices of the CSP. In short, Petitioners claim that they are harmed by the diversion of their tax dollars away from public schools and into private schools. Like the taxpayer plaintiffs in Dodge and Johnson-Oimsted, Petitioners have a cognizable interest in the government's spending their tax money in a lawful manner. Dodge v. Dep't of Soc. Servs., 198 Colo. 379, 600 P.2d 70, 72 (1979); Johnson-Olmsted Realty Co. v. City & Cnty. of Denver, 89 Colo. 250, 1 P.2d 928, 930 (1931).

166 Importantly, Petitioners' alleged economic injury in this case is not merely an "indirect and incidental" harm. Wimberly v. Ettenberg, 194 Colo. 163, 570 P.2d 535, 539 (1977). In Hickenlooper v. Freedom from Religion Foundation, Inc., this court held that the de minimis cost of "the paper, hard-drive space, postage, and personnel necessary to issue one Colorado Day of Prayer proclamation each year" was not sufficiently related to the plaintiffs' tax contributions to *478establish an injury in fact. 2014 CO 77, 115, 338 P.3d 1002, 1008. Here, by contrast, Petitioners estimate that, based on a projected funding amount of $6100 per pupil for the 2011-2012 school year, the CSP would remove more than $3 million from the Douglas County School District's budget. In fact, by the time the trial court entered its injunction, the CSP had already delivered more than $200,000 in tuition checks to Private School Partners. In my view, these expenditures demonstrate that Plaintiffs have alleged a sufficient injury for taxpayer standing purposes. Wimberly, 570 P.2d at 589.

'IH. Petitioners' Claim Under the Public School Finance Act

167 Having determined that Petitioners have taxpayer standing under the Act, I briefly outline my views of the merits of their claim and my conclusion that the CSP is a patently unauthorized use of public funds under the Act.

168 Petitioners allege that the CSP violates the Act largely for two reasons. . First, the Act is designed to distribute public money to each school district to fund public education, and the CSP violates section 22-54-104(1)(a), C.R.S. (2014), by diverting public funds to private schools. Second, the CSP funnels public funds through the Choice Scholarship Charter School-a charter school that exists only on paper and fails to comport with the requirements of the Charter School Act, § 22-30.5-104, C.R.S. (2014). Because I agree that the CSP diverts public funds allocated for public education to private schools and that the nonexistent Charter School functions as no more than a funding conduit to achieve this end, I would grant Petitioners' requested relief,

169 The Public School Fmance Act was "enacted in furtherance of the general assembly's duty under section 2 of article IX of the state constitution to provide for a thorough and uniform system of public schools throughout the state." § 22-54-102(1), C.R.S. (2014). This Act is the means by which Colorado funds its public schools, and the tax money distributed under the Act is explicitly intended for "public schools" and "public ed-E.g., § 22-54-101, CRS. (2014) ucation." (short title) (emphasis added); § 22-54-102(1) (legislative declaration) (emphasis added); § 22-54-104(1)(a) ("[Thhe provisions of this section shall be used to calculate for each district an amount that represents the financial base of support for public education in that district.... The district's total program.shall be available to the district to fund the costs of providing public education ...." {emphasis added)). The Act does not authorize a district to redirect public funds allocated for a student's public school education to finance that student's private school education.

T 70 As the majority describes, the District collects per-pupil funding from the State based on its public school pupil enrollment. Maj. op. T4; § 22-54-104. Under the Act, charter school students are included in the District's "pupil enrollment" for the purposes of per-pupil revenue, see § 22-54-124(1)(c), C.R.S. (2014), as long as the charter school "report[s] to the department the number of pupils included in the school district's pupil enrollment ... that are actually enrolled in each charter school." § 22-80.5-112(1)(a), C.R.S. (2014) (emphasis added). The CSP funds itself through per-pupil revenue received from the State by counting the CSP students as charter school students "enrolled" in the Choice Scholarship Charter School. Maj. op. 14. For each scholarship recipient "enrolled" at the Charter School, the District retains 25% of the per-pupil funding amount to cover administrative costs and sends the remaining 75% to the student's chosen Private School Partner in the form of a check that the parent must endorse for the sole purpose of paying tuition at the private school. Id. at 15.

T71 The problem with this arrangement, of course, is that the Choice Scholarship Charter School does not in fact exist. As the trial court found, the Charter School "has no. buildings, employs no teachers, requires no supplies or books, and has no curriculum." No CSP student will spend a single day attending classes at this "school." The Choice Scholarship Charter School is an illu- . sion, serving merely as a conduit to collect per-pupil revenue from the state to send students to private schools. Labeling this *479private school funding mechanism a "charter school" to collect public funds under the Act does not make it so.

172 Moreover, the Private School Partners-where the CSP scholarship students are actually enrolled and educated-fail to meet multiple requirements of the Charter School Act. Most obviously, charter schools must be public, nonsectarian, and nonreligious, and they must operate within a public school district. § 22-80.5-104(1). Charter schools may not discriminate on the basis of disability, sexual orientation, religion, or need for special education services. § 22-30.5-104(8). And charter schools may not charge tuition. § 22-30.5-104(5).

T 73 The Private School Partners are plainly not public schools, and the trial court found that fourteen of the twenty-three Private School Partners are located outside the Douglas County School District. Sixteen are sectarian or religious and teach "sectarian tenets or doctrines" as this term is used in article IX, section 8 of the Colorado Constitution. At least eight discriminate in enrollment or admissions on the basis of religious beliefs or practices. In addition, the trial court found that the CSP permits Private School Partners to discriminate against students with disabilities; that one school has an "AIDS policy" under which it can refuse to admit, or expel, HIV-positive students; and that another participating school lists homosexuality as a "ecause for termination" in its teacher contract. Finally, every single one of the CSP's Private School Partners charges tuition.

74 Respondents argue that section 22-32-122(1), C.R.S. (2014), which allows school districts to contract with private schools and corporations for educational services, and section 22-30.5-104(4)(b), which permits charter schools to contract with education management providers, expressly authorize the Choice Scholarship Charter School to purchase a "complete package of educational services" from the Private School Partners. See Answer Br. for Douglas County School District, et al. at 27. However, section 22-32-122(8)(a) explicitly states that any educational service provided under this statute must be "of comparable quality and meet the same requirements and standards that would apply if performed by the school district." (Emphasis added.) Article IX, seetion 8 of the Colorado Constitution prohibits religious instruction in public schools, and therefore the CSP could not contract with private religious schools for a "complete package of educational services." Likewise, although section 22-30.5-104(4)(b) permits charter schools to enter into private contracts, it does not authorize charter schools to violate the requirements of the Charter School Act. See § 22-80.5-104(1).

T75 In sum, the CSP violates the Act by collecting per-pupil funding from the State for students "enrolled" in an illusory charter school and redirecting that public money to pay tuition for those students' private education at sectarian and other private schools-including schools located outside the District. Moreover, these Private School Partners receiving public money for "charter school!" students fail to meet the statutory requirements of a charter school.

IV. Conclusion

176 I would hold that Petitioners have taxpayer standing to pursue their statutory claim. Further, I conclude, as the trial court did, that Petitioners have demonstrated that the CSP violates the Act; thus, Petitioners have a clear and certain right to injunctive relief. I would reverse the judgment of the court of appeals on statutory grounds and would not reach Petitioners' constitutional claims. I therefore respectfully concur in the judgment only.

. A majority of this court holds in Part II that Petitioners lack standing to bring their statutory claim.