Opinion by Judge J. JONES.
Plaintiff, Mark Hotaling, claims that certain contracts entered into between the Colorado Department of Public Health and Environment (the Department) and two entities that provide family planning services violate article V, section 50 of the Colorado Constitution, which provides that public funds may not be used, directly or indirectly, to pay for abortions. The district court dismissed Mr. Hotaling's complaint, concluding that because the funds at issue are entirely federal funds, Mr. Hotaling lacks Colorado taxpayer standing to challenge the contracts. We agree with the district court, and, therefore, we affirm.
The United States Department of Health and Human Services (DHHS) provided the funds at issue here to the state through two programs: the National Breast and Cervical Cancer Early Detection Program, see 42 U.S.C. §§ 300k to 300n-5, and the nonabortion family planning services program established by Title X of the Public Health Service Act, see 42 U.S.C. §§ 300 to 300a-8. Pursuant to these programs, DHHS provides federal money to the Department, which must select grantees for the funds subject to federal limitations and requirements.
Mr. Hotaling's complaint challenges five contracts the Department awarded under these federal programs in 2007; three to Planned Parenthood of the Rocky Mountains Services Corporation (Services Corp.) and two to Boulder Valley Women's Health Center, Inc. (Boulder Valley). It is undisputed that all of the money awarded under these contracts is federal money,
Mr. Hotaling also alleges that, as a Colorado taxpayer, he has "a legally protected interest in ensuring that public funds are not expended in violation of the Colorado Constitution."
Defendants, who include, in addition to Services Corp. and Boulder Valley, the Governor of the State of Colorado
The district court agreed with defendants' argument that Mr. Hotaling lacks Colorado taxpayer standing. The court did not reach the merits of defendants' motion to dismiss for failure to state a claim. Hence, the only issue before us on appeal is whether the district court erred in concluding that Mr. Hotaling lacks Colorado taxpayer standing.
We review the question of whether a plaintiff has standing de novo. Barber v. Ritter, 196 P.3d 238, 245 (Colo.2008); Ainscough v. Owens, 90 P.3d 851, 855 (Colo.2004).
A court does not have jurisdiction over a case unless a plaintiff has standing to bring it. Thus, standing is a threshold issue that a court must resolve before deciding a case on the merits. Barber, 196 P.3d at 245; Ainscough, 90 P.3d at 855. If the plaintiff does not have standing, the case must be dismissed. State Bd. for Community Colleges v. Olson, 687 P.2d 429, 435 (Colo.1984); Wimberly v. Ettenberg, 194 Colo. 163, 168, 570 P.2d 535, 539 (1977).
To establish standing, a plaintiff suing in Colorado state court must establish that (1) he incurred an injury-in-fact; and (2) the injury was to a legally protected interest. Barber, 196 P.3d at 245; Ainscough, 90 P.3d at 855; Wimberly, 194 Colo. at 168, 570 P.2d at 538.
An injury-in-fact may be tangible or intangible. But a remote possibility of future injury or an injury overly indirect or incidental to the challenged action of the defendant is not sufficient. Barber, 196 P.3d at 246; Ainscough, 90 P.3d at 856. Generally speaking, this prong of the standing test requires "`a concrete adverseness which sharpens the presentation of issues that parties argue to the courts.'" Ainscough, 90 P.3d at 856 (quoting City of Greenwood Village v. Petitioners for Proposed City of Centennial, 3 P.3d 427, 437 (Colo.2000)).
"Whether the plaintiff's alleged injury was to a legally protected interest `is a question of whether the plaintiff has a claim for relief under the constitution, the common law, a statute, or a rule or regulation.'" Barber, 196 P.3d at 246 (quoting in part Ainscough, 90 P.3d at 856). "Like an injury-in-fact, a legally protected interest may be tangible or intangible." Id.
Relying on these broad pronouncements, Mr. Hotaling contends that he has standing because he is a Colorado taxpayer and he has alleged that the Department's action in awarding the contracts at issue violates the Colorado Constitution. We conclude, however, based on an examination of Barber and other taxpayer standing decisions, that the concept of taxpayer standing is not so broad as to permit Mr. Hotaling's claim.
In Barber, state taxpayers challenged the General Assembly's transfers of money from special funds to the state's general fund, claiming that the transfers violated state constitutional prohibitions against imposing taxes without voter approval and taking on debt. In holding that the taxpayers had standing to assert these claims, the supreme court reviewed and relied on the holdings in the following taxpayer standing cases:
1. Dodge, 198 Colo. 379, 600 P.2d 70. In Dodge, the plaintiffs alleged that a state agency was spending state funds to finance nontherapeutic abortions in violation of article V, section 50. In holding that the plaintiffs had standing as taxpayers, the supreme court, relying on Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), apparently concluded that there was (1) a nexus between the plaintiffs' status as taxpayers and the government action and (2) a nexus between their status as taxpayers and the constitutional provision allegedly violated. Dodge, 198 Colo. at 382-83, 600 P.2d at 72.
2. Conrad v. City & County of Denver, 656 P.2d 662 (Colo.1982). In Conrad, several Denver taxpayers challenged the use of city tax dollars to fund the display of a nativity scene. See Barber, 196 P.3d at 246 n. 9 (discussing Conrad.). The court held, relying on Dodge, that the taxpayers had standing because they sought to enjoin an allegedly unlawful expenditure of city funds. Conrad, 656 P.2d at 668.
3. Nicholl, 896 P.2d 859. In Nicholl, the court held, as relevant here, that a taxpayer had standing to claim that a governmental entity had violated Colorado constitutional prohibitions concerning revenue generation and incurring debt (the same type of claim as asserted in Barber).
In these cases, as well as in Barber, there was some connection, albeit perhaps slight, between the plaintiffs' status as taxpayers and the challenged government actions. Though the taxpayers may not have been harmed directly, they were arguably harmed indirectly in that funds to which they had contributed as taxpayers were affected. In Dodge, Conrad, and Nicholl, the injury occurred by virtue of an expenditure of funds to which the taxpayers had contributed. In Barber, the funds were transferred to the general fund, to which the taxpayers had contributed.
Thus, in Barber, the court held that the plaintiffs had alleged an injury-in-fact "because they seek review of what they claim `is an unlawful government expenditure which is contrary to our state government.'" 196 P.3d at 246-47 (quoting in part Nicholl, 896 P.2d at 866). Though the court then said that
Our understanding of Colorado taxpayer standing jurisprudence, and in particular this nexus requirement, is reinforced by Brotman v. East Lake Creek Ranch, L.L.P., 31 P.3d 886 (Colo.2001). In Brotman, a state taxpayer sought to enjoin a transfer by the State Board of Land Commissioners of school land held in trust by the Land Board. The taxpayer claimed that the transfer was in reality a sale that violated constitutionally mandated procedures for sales of school lands held in trust by the Land Board. The supreme court held that the plaintiff did not have taxpayer standing because the Land Board holds school lands in trust "for the benefit of Colorado's public schools, and not for the benefit of taxpayers at large. . . ." Id. at 887. As particularly relevant here, the court reasoned:
Id. at 892. The court expressly distinguished the case from Dodge, which it characterized as involving a claim that "the expenditure of state funds for nontherapeutic abortions violated" the Colorado Constitution. Id. at 889 (emphasis added); see also id. at 891-92. In effect, the court concluded that there was no nexus between the plaintiff's status as a state taxpayer and the challenged government action.
This case is analogous to Brotman. Mr. Hotaling challenges an expenditure of federal funds—to which he has no connection as a Colorado taxpayer.
The judgment is affirmed.
ROY and LOEB, JJ., concur.