by Julie Pelegrin
In addition to telling people what they can and cannot do, the statutes may tell a state agency or a local government what it must do. If the state agency, or a local government, or a government official does not comply with the statute, can a citizen sue the government or the official?
Only if the citizen has standing to sue.
As discussed in last week’s article, to bring a civil suit, a person must be able to demonstrate actual injury to a legally protected interest. If a citizen thinks the state or a local government has failed to follow the statutes or the constitution, the citizen must demonstrate that the statute or constitutional provision creates a legally protected interest for the citizen and that the citizen is harmed by the state’s or the local government’s violation of that interest.
In these types of cases, the most important question is whether the citizen is suing to enforce a statute or a constitutional provision.
If the citizen is suing to enforce a statute, the test for standing is the same as when the citizen is suing another person. As you may recall, to sue Mr. Adams, Mr. Jefferson had to show actual injury to a legally protected interest (in our example last week, he got sick eating Mr. Adams’ eggs). If the statute did not say Mr. Jefferson had a private right of action, Mr. Jefferson had to meet a three-part test: He had to show that he was within the class of people who were intended to benefit from the statute (the general public, who should be warned that Mr. Adams’ eggs could be contaminated); that the legislature intended to create a private right of action (in our case, the act requiring notice of possible contamination didn’t specifically grant a private right of action); and that an implied right of action was consistent with the purposes of the statute. The same test would apply if Mr. Jefferson wanted to sue the Commissioner of Agriculture for failing to inspect Mr. Adams’ farm.
A recent Colorado Supreme Court case, Taxpayers for Public Education v. Douglas County School District, considers whether a citizen has standing to enforce a statute. In this case, parents living in the Douglas County School District claimed that the school district violated the “Public School Finance Act of 1994” by allowing parents to use the school district’s public money to pay for private school. The Court held, however, that the parents did not have standing to sue to enforce the Act. The Act does not specify how it is enforced, so the Court applied the test explained above.
The Court found that the parents were within the class of persons that the Act is supposed to benefit, but the Court did not find that the General Assembly intended to create a private right of action. Also, because the Act authorizes the State Board of Education to adopt rules, the Court concluded that the General Assembly actually decided not to create a private right of action because the State Board can enforce the Act through rules. Finally, the Court held that a private right of action is not consistent with the purpose of the Act, which is to fund public education. The Court said that, to accomplish this purpose, the State Board and the Department of Education need flexibility to calculate, administer, and distribute the funding under the Act. Allowing citizens to sue every time they disagree with an agency’s decisions would impede the Department’s ability to administer the Act.
The analysis would be different if the parents had sued to enforce a constitutional provision. When it comes to enforcing the state constitution, the courts in Colorado recognize the doctrine of “taxpayer standing.” This is a broader doctrine of standing, which essentially says that a taxpayer is injured whenever the government – state or local – fails to comply with the state constitution. The Court assumes there is always a private right of action to enforce the constitution, and it does not apply the test explained above.
For example, the Colorado Supreme Court held that a real estate broker, a paint company, and an oil company had taxpayer standing to challenge the state’s transfer of money from cash funds to the general fund and its use of that money for general government purposes. The plaintiffs alleged that these actions violated the provisions of section 20 of article X of the state constitution (TABOR). The Court held that every taxpayer has a legally protected interest in ensuring that the government complies with the constitution. The government’s alleged violation of the constitution is an injury to the taxpayer’s interest, so the plaintiffs had standing.
Similarly, when Mr. Conrad sued the City and County of Denver for placing a nativity scene on the steps of the city and county building at Christmas, he claimed a violation of section 4 of article II of the state constitution, which prohibits governmental preference of a religion and prohibits the government from forcing a citizen to support a particular religion. The Court held that Mr. Conrad had standing because, as a taxpayer, he was directly injured by Denver’s alleged failure to comply with the constitution.
So why does a court assume a taxpayer is harmed by a violation of the constitution and can always sue the government, but if a taxpayer is harmed by the government’s violation of a statute, she can sue the government only if the statute says she can? Don’t citizens have a right to require the government to comply with the law, whether it’s statutory or constitutional?
It’s a separation of powers issue. The General Assembly controls the language of the statute, and the General Assembly’s intent controls the application of the statute. If the statute doesn’t give a citizen a private right of action to enforce the statute, it’s because the General Assembly did not intend to give it. And the courts, in interpreting a statute, are bound by the General Assembly’s intent.
The constitution, however, is approved by the people, not the General Assembly, and the General Assembly does not control how it is applied. The court will therefore use broader latitude in allowing citizens the opportunity to sue for alleged violations of their constitution.