Original Proceeding Pursuant to C.A.R. 21 District Court,
City and County of Denver, Case No. 18CV31058 Honorable J.
Eric Elliff, Judge
Attorney for Plaintiff: Charles Kaiser Denver, Colorado
Attorneys for Defendant: Molly H. Ferrer Denver, Colorado
Connelly Law, LLC Sean Connelly Denver, Colorado
Attorneys for Amici Curiae the State of Colorado and the
People of Colorado: Philip J. Weiser, Attorney General Julie
C. Tolleson, First Assistant Attorney General Joseph Peters,
Assistant Attorney General Danny Rheiner, Assistant Attorney
General Denver, Colorado
¶1 In this original proceeding under C.A.R. 21,
Defendant-Petitioner School District No. 1 in the City and
County of Denver (DPS) seeks review of the trial court's
denial of its motion to dismiss Plaintiff-Respondent Rebecca
Reeves-Toney's constitutional challenge to the
"mutual consent" provisions of section
22-63-202(2)(c.5) of the Teacher Employment, Compensation,
and Dismissal Act of 1990 (TECDA), §§ 22-63-101 to
-403, C.R.S. (2018). Reeves-Toney alleges that these
provisions violate the local control clause of article IX,
section 15 of the Colorado Constitution by delegating local
school boards' hiring decisions to principals and other
DPS moved to dismiss Reeves-Toney's complaint, arguing,
among other things, that she lacks standing to bring her
claim. The trial court agreed that Reeves-Toney lacks
individual standing, but nevertheless concluded that she
sufficiently alleged taxpayer standing to challenge section
22-63-202(2)(c.5) and plausibly alleged that the statute is
facially unconstitutional. The court thus denied the motion
DPS sought C.A.R. 21 relief. We issued a rule to show cause
and now make the rule absolute. We hold that because
Reeves-Toney has not alleged an injury based on an unlawful
expenditure of taxpayer money, she has failed to demonstrate
a clear nexus between her status as a taxpayer and the
challenged government action. Reeves-Toney therefore lacks
taxpayer standing to bring her constitutional challenge to
section 22-63-202(2)(c.5). Accordingly, we make the rule to
show cause absolute and remand the case to the trial court
with directions to dismiss Reeves-Toney's complaint.
In 2010, the General Assembly enacted Senate Bill 10-191 (SB
191), which significantly amended TECDA provisions concerning
teacher contracts and the transfer process. SB 191 eliminated
the earlier practice of transferring teachers to schools
without the consent of the principal of the recipient school.
See § 22-63-206(5), C.R.S. (2018) ("All
transfers to positions at other schools of the school
district shall require the consent of the receiving
school."). The bill also added paragraph (c.5) to
section 22-63-202(2), which provides, as relevant here, that
"each employment contract . . . shall contain a
provision stating that a teacher may be assigned to a
particular school only with the consent of the hiring
principal and with input from at least two teachers employed
at the school." § 22-63-202(2)(c.5)(I), C.R.S.
(2018). Such an assignment is called a "mutual consent
assignment." § 22-63-202(2)(c.5)(IV).
Under SB 191, nonprobationary teachers who were deemed
effective during the prior school year and who have not
secured a mutual consent placement become members of a
"priority hiring pool" for available positions.
§ 22-63-202(2)(c.5)(III)(A). However, nonprobationary
teachers who are unable to secure such a position after the
longer of twelve months or two hiring cycles are placed on
unpaid leave until they are able to secure an assignment.
This is the third time this court has considered a challenge
to the constitutionality of SB 191. Last year, we took up two
challenges to the law's unpaid leave provisions. In
Johnson v. School District No. 1 in the County of
Denver, we addressed certified questions of law from the
Tenth Circuit in a case in which a teacher argued that her
placement on unpaid leave under section 22-63-202(2)(c.5)
breached her contract and violated her due process rights.
2018 CO 17, ¶ 1, 413 P.3d 711, 712. We held that
nonprobationary teachers who are placed on unpaid leave have
no vested property interest in salary and benefits.
Id. at ¶ 2, 413 P.3d at 713. We concluded,
therefore, that a nonprobationary teacher placed on unpaid
leave under section 22-63-202(2)(c.5)(IV) is not deprived of
a property interest. Id.
In School District No. 1 in the City & County of
Denver v. Masters, several teachers, together with the
Denver Classroom Teachers Association (DCTA), alleged that
DPS had invoked SB 191 to place hundreds of teachers on
unpaid leave in violation of their rights to due process of
law and the contracts clause of the Colorado Constitution.
2018 CO 18, ¶ 1, 413 P.3d 723, 725. Citing our decision
in Johnson, announced the same day, we held that
TECDA did not create a contractual relationship or vest
nonprobationary teachers placed on unpaid leave with a
property interest in salary and benefits. Id. at
¶ 2, 413 P.13 at 725-26.
Approximately two weeks after we issued our decisions in
Johnson and Masters, Reeves-Toney filed the
complaint in this case, raising the present challenge to SB
191's mutual consent provisions based on article IX,
section 15 of the Colorado Constitution.
Facts and Procedural History
Plaintiff Rebecca Reeves-Toney is a nonprobationary
elementary school teacher employed by DPS. On February 9,
2015, she took workers' compensation leave from her
position after ...