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Norton v. Rocky Mountain Planned Parenthood, Inc.

Court of Appeals of Colorado, Sixth Division

January 14, 2016

Jane E. Norton, Plaintiff-Appellant,
v.
Rocky Mountain Planned Parenthood, Inc., a/k/a Planned Parenthood of the Rocky Mountains, Inc., a Colorado nonprofit corporation; John W. Hickenlooper, in his official capacity as Governor of the State of Colorado; Susan E. Birch, in her official capacity as Executive Director of the Colorado Department of Health Care Policy and Financing; and Larry Wolk, in his official capacity as Executive Director of the Colorado Department of Public Health & Environment, Defendants-Appellees.

City and County of Denver District Court No. 13CV34544 Honorable Andrew P. McCallin, Judge

Arrington Law Firm, Barry Arrington, Denver, Colorado; Alliance Defending Freedom, Natalie Decker, Michael Norton, Greenwood Village, Colorado, for Plaintiff-Appellant

Tierney Paul Lawrence LLP, Kevin C. Paul, Denver, Colorado, for Defendant-Appellee Rocky Mountain Planned Parenthood, Inc.

Cynthia H. Coffman, Attorney General, W. Eric Kuhn, Assistant Attorney General, Denver, Colorado, for Defendants-Appellees John W. Hickenlooper, Susan E. Birch, and Larry Wolk

OPINION

TERRY, JUDGE.

¶ 1 Plaintiff, Jane E. Norton, sued defendants, Rocky Mountain Planned Parenthood, Inc. (PP), Governor John W. Hickenlooper, Susan E. Birch in her capacity as Executive Director of the Colorado Department of Health Care Policy and Financing, and Larry Wolk in his capacity as Executive Director of the Colorado Department of Public Health and Environment (CDPHE). She has asserted claims for declaratory and injunctive relief against the government defendants, unjust enrichment against PP for allegedly unlawfully receiving payments of public funds, and the imposition of a constructive trust against PP.

¶ 2 Norton's suit is grounded on article V, section 50 of the Colorado Constitution, which provides that "[n]o public funds shall be used by the State of Colorado, its agencies or political subdivisions to pay or otherwise reimburse, either directly or indirectly, any person, agency or facility for the performance of any induced abortion . . . ." This language places the focus on the purpose for which payments were made. Thus, section 50 prohibits the State from making payments that are made for the purpose of compensating someone for performing an induced abortion.

¶ 3 Even when read broadly, the complaint does not allege that Hickenlooper, Birch, or Wolk (collectively, the State) made the payments for the purpose of paying for any induced abortion. Therefore, Norton did not state a viable claim for violation of section 50.

¶ 4 Accordingly, we affirm the district court's order dismissing Norton's complaint.

I. Background

¶ 5 For purposes of this appeal, the following facts are undisputed.

¶ 6 Norton is a private citizen, suing on her own behalf as a Colorado resident and taxpayer. In 2001, when she was Executive Director of CDPHE, she ordered an audit to be done to determine whether PP was separately incorporated, maintained separate facilities, and maintained financial records which demonstrated its financial independence from Planned Parenthood of the Rocky Mountains Services Corporation (Services). The complaint alleges that Services is an affiliate of PP, and that Services "did then and still does perform abortions."

¶ 7 Because the audit showed that PP was charging below-market rent to Services, Norton concluded that PP was subsidizing Services. Norton believed that, under section 50, the State was precluded from paying taxpayer dollars or awarding contracts to PP. She reasoned that, because PP was subsidizing Services, the net result was that the State had been indirectly paying for abortions, in violation of section 50. After Norton's audit, and at her instigation, the State terminated its contractual relationship with PP and ceased all taxpayer funding of that organization.

ΒΆ 8 According to the complaint, since about 2009, the State has resumed making payments to PP. Norton alleges that the payments amount to direct or indirect subsidization of Services' abortion operations, in violation of section 50, and her suit seeks a declaratory judgment and injunctive relief voiding any contracts entered into by the State and PP and prohibiting payment of public funds to ...


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