Rocky Mountain Gun Owners v. Polis

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.