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Norton v. Rocky Mountain Planned Parenthood, Inc.

Supreme Court of Colorado, En Banc

January 22, 2018

Jane E. Norton, Petitioner
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. Respondents

          Attorneys for Petitioner: Michael J. Norton Greenwood Village, Colorado

          The Law Office of Natalie L. Decker, LLC Natalie L. Decker Littleton, Colorado

          Attorneys for Respondent Rocky Mountain Planned Parenthood, Inc.: Heizer Paul LLP Kevin C. Paul Cynthia A. Coleman Denver, Colorado

          Attorneys for Respondents John W. Hickenlooper, Susan E. Birch, and Larry Wolk: Cynthia H. Coffman, Attorney General W. Eric Kuhn, Senior Assistant Attorney General Denver, Colorado

          Attorneys for Amici Curiae Colorado Family Action, Genesis Family Church, Kingdom Way Ministries, Summit Ministries, and Christina Darlington: SDG Law LLC David M. Hyams Denver, Colorado

          Attorneys for Amici Curiae Faith and Freedom Coalition of Colorado, Family Talk, Dr. James Dobson, and the Colson Center for Christian Worldview: MRDLaw Michael Francisco Denver, Colorado

          OPINION

          RICE CHIEF JUSTICE

         ¶1 In this case, we consider whether a complaint alleging a violation of article V, section 50 of the Colorado Constitution ("section 50") based solely on a theory of subsidization states a claim for relief sufficient to overcome a motion to dismiss pursuant to C.R.C.P. 12(b)(5). We hold that it does not. Instead we hold that to state a claim for relief under section 50, a complaint must allege that the State made a payment to a person or entity-whether directly to that person or entity, or indirectly through an intermediary-for the purpose of compensating them for performing an abortion and that such an abortion was actually performed.

         I. Facts and Procedural History

         ¶2 Petitioner Jane E. Norton sued Rocky Mountain Planned Parenthood, Inc. ("RMPP"), Governor John W. Hickenlooper, the Executive Director of the Colorado Department of Health Care Policy and Financing, and the Executive Director of the Colorado Department of Public Health and Environment ("CDPHE"), for violating section 50. Section 50 provides, "No 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 . . . ."

         ¶3 Prior to filing this suit as a private citizen, Norton had served as Executive Director of CDPHE. In 2001, while serving in that role, Norton hired an accounting firm to determine whether RMPP was "separately incorporated, maintain[ed] separate facilities, and maintain[ed] financial records which demonstrate[d] financial independence" from Planned Parenthood of the Rocky Mountains Services Corporation ("Services Corp."), an organization that offers abortion services. The accounting firm determined that RMPP was "subsidizing the rent for Services Corp., an affiliate that performs abortions." From this information, Norton concluded that whenever CDPHE provided funding to RMPP, for example by contracting with RMPP to perform breast and cervical cancer screenings, it was violating section 50. As a result, Norton terminated the State's contractual relationship with RMPP and ceased all taxpayer funding of that organization. In 2009, after Norton had left CDPHE, the State resumed making payments to RMPP, prompting Norton to file this lawsuit in which she sought declaratory and injunctive relief against the State officials and pursued a claim of unjust enrichment against RMPP.

         ¶4 Norton alleged in her complaint that the State officials violated section 50 by paying approximately $14 million[1] of public funds to RMPP for non-abortion medical services. Specifically, Norton's complaint alleged that, in making these payments, the State subsidized the abortion operations of Services Corp., because giving state funds to RMPP allowed RMPP to charge below-market rent to Services Corp. for the use of RMPP's facilities. Norton did not allege that the State paid public funds to RMPP or to Services Corp. to compensate either organization for actually performing abortions.

         ¶5 The trial court dismissed Norton's complaint under C.R.C.P. 12(b)(5) for failure to state a claim, concluding that Norton did not allege "any specific abortion that is being supported with [state funds]." The trial court reasoned that, in order to fall within the scope of section 50, a payment made by the State, whether directly or indirectly, to a health care provider must be connected to the performance of an abortion.

         ¶6 The court of appeals affirmed, holding that the language of section 50 "requires that the purpose for which the State makes the payment be analyzed." Norton v. Rocky Mountain Planned Parenthood, Inc., 2016 COA 3, ¶ 17, ___ P.3d ___. The court of appeals concluded that if it were to adopt Norton's interpretation of "directly or indirectly" to refer to how the funds ultimately are used by the payee, it would lead to an absurd result. Id. at ¶ 24. For example, the State pays salaries to its employees. The court of appeals reasoned that if one of those employees donated money to Services Corp., under Norton's interpretation, the payment of salary to the employee would be an indirect payment for an induced abortion and would violate section 50. Id. The court of appeals held that this result cannot have been intended by the electorate when it enacted section 50 because the connection to an induced abortion is too attenuated from the reason for the initial payment of salary to the employee. Id. The court of appeals concluded that because, in this example, the State paid the employee for services other than performing induced abortions, section 50 was not violated. Id. The court of appeals held that the same is true for the State paying RMPP for services other than performing induced abortions. Id. at ¶ 25. Accordingly, the court of appeals concluded that, because Norton did not allege that the State made payments to RMPP or Services Corp. for the purpose of reimbursing them for performing abortion services, the trial court properly dismissed the complaint. Id. at ¶ 26. We granted certiorari.[2]

         II. ...


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