SUMMARY
November 10, 2021
2021COA137
No. 20CA0997, Rocky Mountain Gun Owners v. Polis —
Constitutional Law — Colorado Constitution — Reading and
Passage of Bills
A division of the court of appeals holds that whether the
House of Representatives properly dispensed with the reading of a
bill in full as required by article V, section 22 of the Colorado
Constitution — specifically the requirement that the bill be read in
full unless the members unanimously agree to dispense with
reading the bill in full — does not present a nonjusticiable political
question. The division also determines that two Representatives
who requested that the bill — House Bill 19-1177, also known as
the Red Flag law — be read in full during second reading in the
House, but whose requests were denied, have standing to assert a
violation of the reading requirement.
The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
COLORADO COURT OF APPEALS 2021COA137
Court of Appeals No. 20CA0997
City and County of Denver District Court No. 19CV31716
Honorable Eric M. Johnson, Judge
Rocky Mountain Gun Owners, a Colorado nonprofit corporation;
Representative Patrick Neville; Representative Lori Saine, House Minority
Leader; and Representative Dave Williams,
Plaintiffs-Appellants and Cross-Appellees,
v.
Jared S. Polis, in his official capacity as Governor of the State of Colorado,
Defendant-Appellee and Cross-Appellant.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division IV
Opinion by JUDGE J. JONES
Freyre and Tow, JJ., concur
Announced November 10, 2021
Arrington Law Office, Barry K. Arrington, Denver, Colorado, for Plaintiffs-
Appellants and Cross-Appellees
Philip J. Weiser, Attorney General, Eric R. Olson, Solicitor General, Grant T.
Sullivan, Assistant Solicitor General, Denver, Colorado, for Defendant-Appellee
and Cross-Appellant
1
¶ 1
Rocky Mountain Gun Owners (RMGO) and three members of
the Colorado House of Representatives challenge the enactment of
House Bill 19-1177, a so-called “Red Flag law,” now codified at
sections 13-14.5-101 to -114, C.R.S. 2021. The most well-known
aspect of that law is the provision allowing a court to issue a
“temporary extreme risk protection order” requiring a person to
surrender all firearms, or allowing law enforcement personnel to
take the person’s firearms, if the court finds, by a preponderance of
the evidence, that the person “poses a significant risk of causing
personal injury to self or others in the near future” by virtue of
purchasing, possessing, or receiving a firearm or having a firearm in
his or her custody or control. §§ 13-14.5-103(3), -108.
¶ 2
RMGO and Representatives Patrick Neville (the House Minority
Leader), Lori Saine, and Dave Williams filed suit alleging that the
House violated article V, section 22 of the Colorado Constitution,
commonly referred to as the “Reading Clause,” by failing to read the
full text of House Bill 19-1177 after Representatives Saine and
Williams separately requested such a reading.
¶ 3
The district court granted the Governor’s motion to dismiss
the complaint. The court ruled that the plaintiffs’ challenge under
2
the Reading Clause presents a nonjusticiable political question,
meaning that the court lacked subject matter jurisdiction. That
ruling was sufficient to justify dismissal of the complaint, but the
court went on to hold that (1) none of the plaintiffs have taxpayer or
“individual” standing but (2) Representatives Saine and Williams
have “legislative standing.”1
¶ 4
The plaintiffs appeal the dismissal of their complaint. The
Governor cross-appeals the district court’s ruling that
Representatives Saine and Williams have standing.
¶ 5
We hold, largely on the basis of the Colorado Supreme Court’s
recent decision in Markwell v. Cooke, 2021 CO 17, that the
plaintiffs’ challenge to the Red Flag law under the Reading Clause
doesn’t present a nonjusticiable political question. We also hold
that while none of the plaintiffs have taxpayer standing,
1 The Governor also moved to dismiss the complaint on the basis of
laches, arguing that by waiting until May 2, 2019, two days before
the end of the legislative session, to file their complaint, the
plaintiffs had purposefully delayed filing suit so that the General
Assembly would not have time to “fix the alleged procedural error”
before the end of the session. The district court didn’t rule on that
issue. The Governor doesn’t raise the issue on appeal and we don’t
express any view on its merits.
3
Representatives Saine and Williams have standing because they
have sufficiently alleged an injury in fact to a legally protected
interest. We therefore affirm the judgment in part, reverse it in
part, and remand the case to the district court for further
proceedings.
I. Background
¶ 6
The Governor moved for dismissal under both C.R.C.P.
12(b)(1) and (b)(5). But even though a motion under Rule 12(b)(1)
differs from one under Rule 12(b)(5) in that a court may consider
evidence outside the complaint in ruling on the motion, need not
accept the allegations in the plaintiff’s complaint as true, and may
make factual findings in ruling on the motion, Medina v. State, 35
P.3d 443, 452 (Colo. 2001), none of the parties submitted any
evidence in support of their respective positions. Rather, the
Governor treated the plaintiffs’ factual allegations as true, as did
the district court. Therefore, we will as well.
¶ 7
House Bill 19-1177 was introduced in the House on February
14, 2019. On March 1, 2019, while the House was considering the
bill on second reading, Representative Williams requested that bill
be read in full. The Chair of the Committee of the Whole denied his
4
request. Representative Saine also requested that the bill be read
in full while it was being considered on second reading. The Chair
said her request “will not be considered.” The bill was never read in
full in the House.
¶ 8
The General Assembly passed the bill on April 1, 2019, and
the Governor signed it into law on April 12, 2019.
¶ 9
The plaintiffs filed their complaint on May 2, 2019. As noted,
they challenge the Red Flag law under the Reading Clause of the
Colorado Constitution. The Reading Clause provides as follows:
Every bill shall be read by title when
introduced, and at length on two different days
in each house; provided, however, any reading
at length may be dispensed with upon
unanimous consent of the members present. All
substantial amendments made thereto shall be
printed for the use of the members before the
final vote is taken on the bill, and no bill shall
become a law except by a vote of the majority
of all members elected to each house taken on
two separate days in each house, nor unless
upon its final passage the vote be taken by
ayes and noes and the names of those voting
be entered on the journal.
Colo. Const. art. V, § 22 (emphasis added).
¶ 10
The plaintiffs also allege that the House violated House Rule
27(b), which says,
5
Every bill shall be read by title when
introduced, which shall constitute first
reading, and at length on two different days
prior to its being finally passed. Reading
before the House sitting as committee of the
whole shall constitute second reading. Unless
a member shall request the reading of a bill in
full when it is being considered on second or on
third reading, it shall be read by title only, and
the unanimous consent of the members
present to dispense with the reading of the bill
at length shall be presumed.
(Emphasis added.) The plaintiffs allege that Representatives Saine
and Williams requested that the bill be read in full “when it [was]
being considered on second . . . reading.”
II. Analysis
¶ 11
We first consider whether the plaintiffs’ challenge to the Red
Flag law under article V, section 22 raises a nonjusticiable political
question. After concluding that it does not, we turn to the issue of
standing. As there are, at this juncture, no disputed facts (and no
findings of fact), and the issues present questions of law, we review
the district court’s judgment de novo. Markwell, ¶ 20
(interpretation of the Reading Clause is a legal issue subject to de
novo review); Barber v. Ritter, 196 P.3d 238, 245 (Colo. 2008)
(“Whether a plaintiff has standing to sue is a question of law that
6
we review de novo.”); see Schroder v. Bush, 263 F.3d 1169, 1173
(10th Cir. 2001) (the application of the political question doctrine is
a legal question that the appellate court reviews de novo).
A. Political Question
¶ 12
The district court’s ruling that the plaintiffs’ Reading Clause
challenge to the Red Flag law presents a nonjusticiable political
question cannot stand in light of the supreme court’s subsequent
decision in Markwell. In that case, three state senators challenged
the passage of a bill under the Reading Clause. After one of those
senators asked that the bill be read at length, Senate staff uploaded
the bill to several computers and those computers read different
portions of the bill simultaneously at high speed. Several senators
objected to that procedure, to no avail. The computers “churn[ed]
out unintelligible sounds” for four hours. Markwell, ¶¶ 6-8.
¶ 13
The three senators sought and obtained temporary and
preliminary injunctions in district court. In granting those
injunctions, the district court rejected the responding Senate
officers’ argument that the senators’ Reading Clause challenge
presented a nonjusticiable political question. On C.A.R. 50 review,
the supreme court affirmed. Though the court split four to three on
7
the question whether the Reading Clause had been violated (with
the majority deciding that it had), all seven justices agreed that the
Reading Clause challenge didn’t present a nonjusticiable political
question. Id. at ¶¶ 23-31 (majority opinion); id. at ¶ 51 (Márquez,
J., dissenting); id. at ¶ 75 (Hood, J., dissenting). The majority
reasoned that “the issue of whether the legislature complied with
the reading requirement . . . requires constitutional interpretation
and is thus a prime candidate for judicial resolution,” id. at ¶ 23,
relying on a number of the supreme court’s past decisions,
including Colorado Common Cause v. Bledsoe, 810 P.2d 201 (Colo.
1991) (involving a challenge under the GAVEL amendment, Colo.
Const. art. V, § 22a), and In re House Bill No. 250, 26 Colo. 234, 57
P. 49 (1899) (involving a challenge under the printing requirement
of article V, section 22). See also Mass. Mut. Life Ins. Co. v. Colo.
Loan & Tr. Co., 20 Colo. 1, 4-5, 36 P. 793, 794 (1894) (addressing
the merits of an article V, section 22 reading requirement claim);
Grossman v. Dean, 80 P.3d 952, 961 (Colo. App. 2003) (holding that
a challenge under the GAVEL amendment didn’t present a
nonjusticiable political question; the challenge called for the court
8
“to interpret a constitutional amendment and to determine whether
the application of the House Rule violates that amendment”).
¶ 14
We see little daylight between the challenge under the Reading
Clause in Markwell and the challenge under the Reading Clause in
this case. True, the challenge in Markwell was that the bill had not
been read within the meaning of article V, section 22, while the
challenge in this case is whether the House members unanimously
agreed to dispense with the reading requirement. But the
unanimity requirement of article V, section 22 is directly, and
explicitly, in aid of the reading requirement. It gives each member
of the General Assembly the right to insist that a bill be read at
length twice. In this way, the unanimity requirement advances the
purposes of the reading requirement, which are “to prevent, so far
as possible, fraud and trickery and deceit and subterfuge in the
enactment of bills, and to prevent hasty and ill-considered
legislation.” In re House Bill No. 250, 26 Colo. at 238, 57 P. at 50,
quoted with approval in Markwell, ¶ 28; see also Markwell, ¶ 28
(“[T]he reading requirement . . . was aimed at ensuring the integrity
of the enactment of bills.”). Thus, we conclude that the unanimity
requirement is of a piece with the reading requirement, and
9
therefore we don’t see how we can distinguish Markwell on this
issue in any principled way.
¶ 15
In arguing for a contrary conclusion, the Governor relies most
heavily on features of political questions articulated in Baker v.
Carr, 369 U.S. 186 (1962). But in Markwell, decided after the
briefing in this case, the majority questioned the utility of the
features identified in Baker, resting as they do on considerations
unique to federal courts under Article III of the United States
Constitution. The majority noted that those considerations “cannot
be mechanically applied here because Colorado district courts,
unlike their federal counterparts, are courts of general jurisdiction.”
Markwell, ¶¶ 24-25.2 The majority declined to consider those
2 The features of a political question identified in Baker are
a textually demonstrable constitutional
commitment of the issue to a coordinate
political department; or a lack of judicially
discoverable and manageable standards for
resolving it; or the impossibility of deciding
without an initial policy determination of a
kind clearly for nonjudicial discretion; or the
impossibility of a court’s undertaking
independent resolution without expressing
lack of the respect due coordinate branches of
government; or an unusual need for
10
features one by one, instead simply observing that, mindful of
differences between federal and state judicial authority, it had
found justiciable at least one question similar to the Reading Clause
challenge before it. Id. at ¶¶ 25-26 (referring to Bledsoe). The
dissenting justices had even less use for Baker, saying that “the
majority misses an opportunity to clean up the law by admitting
that, despite our professed (but at best inconsistent) fealty to Baker,
it does not dictate the justiciability of political questions under
Colorado law.” Id. at ¶¶ 73-79 (Hood, J., dissenting).3
¶ 16
We therefore decline to address the Baker considerations
individually. Suffice it to say, we don’t see any of those
considerations as militating against judicial determination of the
unquestioning adherence to a political decision
already made; or the potentiality of
embarrassment from multifarious
pronouncements by various departments on
one question.
Baker v. Carr, 369 U.S. 186, 217 (1962).
3 Given the justices’ treatment of Baker in Markwell, one might
reasonably conclude that the utility of Baker in the context of the
Reading Clause is, if not nil, at most marginal.
11
House’s compliance with the unanimity requirement of article V,
section 22.
¶ 17
The Governor also argues that the unanimity requirement is
different from the reading requirement in that the unanimity
requirement is addressed by a House Rule (Rule 27(b) quoted
above); article V, section 12 of the Colorado Constitution gives the
General Assembly the power to determine the rules of its
proceedings; and the courts may not inquire whether the House
complied with its own rules. The district court agreed with this
argument.4 We don’t.
¶ 18
As discussed, the unanimity requirement is tied to the reading
requirement. Contrary to the Governor’s assertion, there are not
“multiple ways” that the unanimity requirement can be complied
with, thus taking compliance with that requirement out of the
judiciary’s reach.5 Unanimity in this context requires that every
4 In addressing this issue, the district court said the plaintiffs
hadn’t alleged any violation of House Rule 27(b). That is incorrect.
Paragraphs 20 and 21 of the complaint alleged that Representative
Williams and Saine “exercised [their] right” under House Rule 27(b)
but were denied that right.
5 In Markwell, the court held that although there may be more than
one way for the House or Senate to “read” a bill, the courts may
12
member of the House (and the Senate) consent to dispense with the
reading requirement of a bill; any member can insist that a bill be
read in full. True, any such request must be timely. But in this
case, according to the complaint, Representatives Saine and
Williams requested that the bill be read in full while that bill was
being considered on second reading, consistent with House Rule
27(b).
¶ 19
And in any event, though the legislature may, by rule, impose
reasonable procedural requirements on a legislator’s exercise of
constitutional rights relating to the legislative process, it may not by
rule, or by interpretation or application of a rule, essentially nullify
a constitutional requirement. We think it telling that in this case,
the Governor did not submit any evidence — whether House Rule or
affidavit — attempting to justify the Chair’s refusal on the basis of
decide whether the bill was read. Markwell v. Cooke, 2021 CO 17,
¶ 32. That is, the courts may determine whether the method
chosen by the General Assembly “is in conformity” with the
constitutional requirement. Id. (quoting In re Interrogatories of
Governor Regarding Certain Bills of Fifty-First Gen. Assembly, 195
Colo. 198, 209, 578 P.2d 200, 208 (1978)). Likewise, courts may
determine whether the House’s method of dispensing with
unanimity conforms to the constitution.
13
any House Rule or existing parliamentary procedure. His argument
seems to be that once the Chair denies any request to read the bill
in full, that decision is unreviewable for reasons that need not be
explained. But accepting that position would, as a practical matter,
render the Reading Clause a dead letter.
¶ 20
In In re House Bill No. 250, the supreme court rejected an
argument similar to that now advanced by the Governor. In that
case, the Governor asked the supreme court to determine whether
the General Assembly had complied with the requirement of article
V, section 22 that any “substantial amendments” to a bill be printed
for members before a final vote is taken. The court rejected the
argument that it was solely for the legislature to determine whether
an amendment was substantial: “If either house of the general
assembly may for itself conclusively determine whether or not any
amendment is a substantial one, then all the benefits of this clause
would be lost, and its effect altogether frittered away . . . .” 26 Colo.
at 239, 57 P. at 50; see also Bevin v. Commonwealth ex rel. Beshear,
563 S.W.3d 74, 82 (Ky. 2018) (“To allow the General Assembly . . .
to decide whether its actions are constitutional is literally
14
unthinkable.” (quoting Rose v. Council for Better Educ., Inc., 790
S.W.2d 186, 190 (Ky. 1989))).6
¶ 21
We therefore reject the Governor’s argument that this case,
unlike Markwell, implicates unreviewable House rules or
“parliamentary procedures.”
¶ 22
The Governor also argues that the plaintiffs’ challenge is
barred because the plaintiffs-legislators didn’t “exhaust legislative
remedies.”7 But the Governor doesn’t cite any authority supporting
this novel argument. The cases cited by the Attorney General
involved exhaustion of administrative remedies; they didn’t involve
the General Assembly’s compliance with the constitution.
¶ 23
The sole exception is Melcher v. Federal Open Market
Committee, 836 F.2d 561 (D.C. Cir. 1987), in which the court
rebuffed a Senator’s challenge to the method of appointing certain
members of a federal committee under the Appointments Clause of
Article II, Section 2 of the United States Constitution. The court
held that the “doctrine of equitable discretion” barred the suit
6 Bevin addressed a challenge to a law under Kentucky’s equivalent
to the Reading Clause.
7 The Governor didn’t make this argument in the district court.
15
because the Senator could “obtain substantial relief from his fellow
legislators through the legislative process itself.” Id. at 563-65. But
the Governor doesn’t point to any means by which the legislators in
this case could have obtained “substantial relief” from their fellow
legislators through the legislative process.8 More importantly, the
“equitable discretion” doctrine on which Melcher relied appears to
be one applied in this manner only by the District of Columbia
Circuit, and even then, inconsistently. See Shaffer v. Clinton, 54 F.
Supp. 2d 1014, 1018 (D. Colo. 1999) (rejecting such an application
of the doctrine as “an aberrant use of the concept of discretion”),
aff’d on other grounds, 240 F.3d 878 (10th Cir. 2001).
¶ 24
And we don’t see how the notion of requiring exhaustion of
legislative remedies in this context can be squared with the court’s
holding in Markwell that compliance with the Reading Clause is “a
8 The only legislative “remedy” that the Governor actually identifies
in his briefs is that members have the right to have protests of
actions “recorded in the chamber’s journal.” That would hardly
remedy the alleged violation at issue. At oral argument, the
Attorney General mentioned House Rule 11, which allows a member
to request a quick vote on whether a decision of the Speaker should
be overruled. Obviously, if the vote is against the member seeking
the vote, that is no remedy at all.
16
prime candidate for judicial resolution,” Markwell, ¶ 23, or with
Colorado principles of standing.
¶ 25
We therefore decline to impose a requirement on legislators
that they first appeal to their fellow legislators before seeking
redress for an alleged constitutional violation in court.
In sum, we conclude that the plaintiffs’ challenge to the Red
Flag law under article V, section 22 doesn’t present a nonjusticiable
political question.
B. Standing
¶ 26
All four of the plaintiffs claim taxpayer standing.
Representatives Saine and Williams claim to have standing as
individuals or legislators. We address these claims in turn.
1. Taxpayer Standing
¶ 27
The plaintiffs contend that they have taxpayer standing
because they are taxpayers and taxpayer funds will be expended to
enforce the Red Flag law.9 We conclude, however, that the
9 RMGO doesn’t pay taxes but it alleges that its members do. It
therefore claims “associational standing.” See Colo. Union of
Taxpayers Found. v. City of Aspen, 2018 CO 36, ¶ 10.
17
expenditure of taxpayer funds is too attenuated from the injury at
issue to confer taxpayer standing on any of the plaintiffs.
¶ 28
To establish standing under Colorado law, a plaintiff must
show both (1) that he or she suffered an injury in fact and (2) that
the injury was to a legally protected interest. Reeves-Toney v. Sch.
Dist. No. 1, 2019 CO 40, ¶ 22; Barber, 196 P.3d at 245. “[T]he
standing requirement distinguishes ‘those particularly injured
by . . . government action,’ who may present their controversy for
resolution by the courts, from members of the general public, whose
interests are more remote and who ‘must address their grievances
against the government through the political process.’”
Reeves-Toney, ¶ 22 (quoting Barber, 196 P.3d at 255 (Eid, J.,
concurring in the judgment)).
¶ 29
Colorado recognizes a form of taxpayer standing that is
“relatively broad.” Id. at ¶ 23. But “to meet the injury-in-fact
requirement, a plaintiff relying on her status as a taxpayer to confer
standing must demonstrate ‘a clear nexus between h[er] status as a
taxpayer and the challenged government action.’” Id. (quoting
Hickenlooper v. Freedom from Religion Found., Inc., 2014 CO 77,
¶ 12).
18
¶ 30
The plaintiffs don’t allege any such clear nexus in this case.
The injury of which they complain is the House’s failure to comply
with the reading and unanimity requirements of the Reading
Clause. And, at oral argument, counsel for the plaintiffs conceded
that there was no expenditure or transfer of taxpayer funds as a
result of that failure to comply. They allege only that taxpayer
funds will be expended to enforce the Red Flag law. Any such
expenditure is too attenuated from the alleged constitutional
violation resulting from the failure to read the bill in full to confer
standing on any of the plaintiffs.10
¶ 31
We therefore conclude that none of the plaintiffs has taxpayer
standing.
2. Individual Standing
¶ 32
Relying on Grossman, the district court ruled that
Representatives Saine and Williams have “legislative standing” to
challenge the manner of enactment of the Red Flag law. Seizing on
the court’s use of the word “legislative,” the Governor contends that
10 The plaintiffs don’t allege that the Red Flag law would not have
been enacted if it had been read in full as required by the Reading
Clause.
19
the court erred because Colorado doesn’t recognize the concept of
“legislative standing” and these Representatives have not alleged
any injury in fact. We conclude, however, that Representatives
Saine and Williams have standing under generally applicable
standing principles.
¶ 33
As discussed, the Reading Clause requires reading of a bill in
full unless the members of the chamber unanimously agree to
dispense with that requirement. “Unanimous” isn’t an ambiguous
term. It means “having the agreement and consent of all without
dissent.” Webster’s Third New International Dictionary 2482
(2002). So the Reading Clause gives each member of the General
Assembly the right to insist on the reading of a bill in full. Put
another way, the right granted is personal to individual members.
It follows that both Representative Saine and Representative
Williams had a legally protected interest in having the bill read in
full at their request. Indeed, the Governor doesn’t even argue on
appeal that they lacked such an interest.
¶ 34
As for suffering an injury in fact to that interest, they suffered
such an injury when their requests were denied. They were
20
deprived of their personal right to have the bill read at length before
it was voted on, and the bill was not read in full.
¶ 35
The Governor argues, however, that the Representatives didn’t
suffer an injury in fact because they don’t “allege that they failed to
receive notice of the bill’s contents or that reading of the bill would
have led to a substantive change to its provisions.” But that
argument fails to acknowledge the mandatory nature of the Reading
Clause. See In re House Bill No. 250, 26 Colo. at 237, 57 P. at 50.
And it ignores at least one purpose of the provision — “to prevent
hasty and ill-considered legislation.” Id. at 238, 57 P. at 50.
¶ 36
As well, the Governor’s position is inconsistent with Grossman.
In that case, a bill’s sponsor challenged the use of a “supermotion”
under House Rule 25(j)(1)(G) to kill his bill. He claimed that use of
the rule violated the GAVEL amendment, section 20 of article V of
the Colorado Constitution, because it denied him his right
thereunder to have his bill considered and voted on by a committee
of reference. 80 P.3d at 958. The division held that the GAVEL
amendment gave such a right to “each legislator,” and that the
denial of that right caused the sponsor to suffer an injury in fact to
that interest. Id. Notably absent from the division’s analysis was
21
any mention of any allegation by the sponsor that his bill would
have been enacted if it had been considered and voted on in
committee. The division simply deemed the denial of the procedural
right sufficient to confer standing.11
¶ 37
Spokeo, Inc. v. Robins, 578 U.S. 330 (2016), on which the
Governor relies, doesn’t require a contrary conclusion. In that case,
the Court held that a “bare procedural violation” of the Fair Credit
Reporting Act would not be sufficiently “concrete” to confer standing
11 We also observe that if the Governor’s position on standing were
correct, Markwell v. Cooke, 2021 CO 17, would be a nullity. This is
because the challengers to the bill in that case were all state
senators. They challenged the bill under the Reading Clause and
didn’t make any of the allegations of injury that the Governor
argues in this case are required. In the Governor’s view, therefore,
the state senators in Markwell lacked standing. If that is so, the
judgment in Markwell is void. See Ainscough v. Owens, 90 P.3d
851, 855 (Colo. 2004) (a court doesn’t have jurisdiction if the
plaintiff doesn’t have standing); People in Interest of J.W. v. C.O.,
2017 CO 105, ¶ 21 (“A judgment rendered without jurisdiction is
void . . . .”). Though we acknowledge that the court’s failure to
address standing in Markwell doesn’t mean that the Markwell
plaintiffs had standing, see Ariz. Christian Sch. Tuition Org. v. Winn,
563 U.S. 125, 144 (2011), we are loath to declare Markwell void.
And we observe that the defendants in Markwell, represented by
highly competent and experienced counsel, didn’t challenge the
senators’ standing in the supreme court. (The Markwell defendants
included lack of standing as an affirmative defense in their answer
in the district court but didn’t argue lack of standing thereafter.)
22
on the plaintiff. Id. at 339-43. But that case was decided based on
Article III federal standing concepts, which are of limited utility in
considering standing under Colorado law. And as the division in
Grossman noted, our cases “reflect a more expansive view of
standing under Colorado law than that expressed under federal
law.” Grossman, 80 P.3d at 959.
¶ 38
We see no principled basis on which to distinguish Grossman.
Therefore, we conclude that the district court didn’t err by
concluding that Representatives Saine and Williams have standing.
III. Conclusion
¶ 39
We affirm the judgment in part, reverse it in part, and remand
the case to the district court for further proceedings. In doing so,
we don’t express any opinion as to the appropriate remedy in this
case or any other case concerning the Red Flag law in the event the
district court finds for the remaining plaintiffs on the merits of their
challenge.
JUDGE FREYRE and JUDGE TOW concur.