The plaintiffs, Friends of Chamber Music, Suzanne W. Joshel and Kevin Markey, appeal a district court decision that upheld an ordinance adopting a Facilities Development Admissions Tax (admissions tax) to
On July 15, 1974, the Denver City Council (council) enacted an ordinance calling for an election on the issuance of two sets of general obligation bonds. Denver, Colo., Ordinance No. 480, Series of 1974. The first question to be submitted to the voters authorized Denver to issue $22,000,000 worth of bonds for the improvement of Mile High Stadium. The second question authorized the issuance of an additional $2,500,000 in bonds to refinance outstanding municipal stadium revenue bonds. Each of the questions indicated that the bonds were "to be payable from general ad valorem taxes." Id. § 2. At the time the ordinance was adopted, the Denver Charter provided that the money necessary to retire bonds could come from property taxes "or other sources as specified by ordinance." Denver, Colo., Charter, § A6.11 (as amended May 15, 1973). The ordinance calling for the election erroneously relied on language in an earlier version of the charter stating that "the amount required to pay the interest on the bonded indebtedness and provide for the sinking fund shall always be provided for out of the tax on property." Id. § 4.
On August 26, 1974, before the electorate voted on the new bonds, the council adopted an ordinance imposing the "Facilities Development Admissions Tax," a tax of forty cents on admission to any event held at a city facility. The ordinance provided that vendors of admissions to events held at city facilities would be responsible for returning the tax to the city. The purpose of the tax as defined by the ordinance was "for the payment of the principal and interest due on any bonds issued in accordance with the proposition submitted to the electorate September 10, 1974, by Ordinance 480, Series of 1974, and for the payment of the expenses of operating and improving the city and its facilities; ..." Denver, Colo., Ordinance No. 590, Series of 1974 (codified as amended at Denver, Colo., Revised Municipal Code § 53-343 (1982)).
At the September 10 election, the voters approved the bond submission questions. Accordingly, on November 11, 1974, the council enacted two ordinances issuing the two sets of bonds. Denver, Colo., Ordinance Nos. 727, 742, Series of 1974. The stadium refinancing bond ordinance specified:
Denver, Colo., Ordinance No. 727, Series of 1974 § 7. The Mile High Stadium improvement bond ordinance contained essentially the same provision. Denver, Colo., Ordinance No. 742, Series of 1974 § 6. The second ordinance, which provided for the issuance of bonds authorized for several different projects in addition to the stadium, specifically provided that direct taxes on property could be levied to pay the interest and principal on the bonds but also reserved the power to pay off the bonds with funds derived from other sources. Id. § 21.
Meanwhile, on October 29, 1974, the council had amended the admissions tax ordinance to require a tax of ten percent on the admissions to each event at a public facility instead of the forty cent per admission tax. Denver, Colo., Ordinance No. 716, Series of 1974. Several later ordinances made minor changes in the admissions tax, particularly revising the expressed purpose of the tax to specify that
The admissions tax became effective January 1, 1975. In December 1976, Friends of Chamber Music filed a complaint in the District Court for the City and County of Denver alleging that the admissions tax was unconstitutional and unlawful. Friends of Chamber Music is a nonprofit organization that has rented Phipps Auditorium, a city facility, for presentation of chamber music concerts. Friends of Chamber Music is a vendor for purposes of the admissions tax and must collect and return the ten percent tax to Denver's Department of Revenue. The complaint was later amended to add as plaintiffs two individuals who had attended events at Denver facilities and paid the tax. The suit was brought as a class action on behalf of two classes: vendors and purchasers of admissions to events at Denver facilities. The plaintiffs requested class certification under C.R.C.P. 23(b)(1), (2) and (3).
The district court held a hearing to determine what form of notice would meet the requirements of C.R.C.P. 23(c)(2), which requires that notice be given to all the members of a class certified under C.R.C.P. 23(b)(3), allowing them the opportunity to opt out of the class and avoid being bound by the court's judgment.
Accordingly, the court ordered: (1) individual notice to all vendors except those who held events at Mile High Stadium; (2) individual notice to purchasers who were season ticket holders or subscribers to events held at Denver facilities other than Mile High Stadium, by voluntary inclusion of the notice in vendor mailings to those season ticket holders or subscribers; and (3) published notice in the Rocky Mountain News and Denver Post, with one notice to go in the sports section of one newspaper and one in the entertainment section of the other newspaper. The plaintiffs complied with the court's order and requested that all vendors notified include a notice of the class action in one of their mailings to their season ticket holders or subscribers. Most of the vendors, however, refused to include the notice.
All evidence at trial consisted of stipulations and exhibits. The district court held that the enactment of the admissions tax was not an illegal alteration of the method of payment specified by the voters in approving the stadium bonds. The court determined that the submission to the voters indicating that the bonds would be payable from ad valorem taxes was necessary to the authorization of general obligation bonds, but did not limit the source of funds for the bonds to ad valorem taxes. The court also ruled that the admissions tax did not deny equal protection or due process under the federal and state constitutions.
The plaintiffs on appeal assert that the admissions tax is an illegal variance from the method approved by the voters to retire the bonds, that the tax violates equal protection guarantees, and that it deprives ticket purchasers of due process of law. The defendants on cross-appeal maintain that: (1) the plaintiff Friends of Chamber Music lacks standing to challenge the tax; (2) the action should not have been certified as a class action or individual notice to all class members should have been required; and (3) recovery of taxes paid should be limited to those taxpayers who have exhausted their administrative remedies if the district court judgment is reversed. We first address the cross-appellant's questions of standing and class certification.
Denver asserts that the plaintiff Friends of Chamber Music lacks standing as a collector
As we have said repeatedly, "the question of standing is really an inquiry into `whether the constitutional or statutory provision on which the claim rests properly can be understood as granting persons in the plaintiff's position a right to judicial relief.' Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975)." State Board for Community Colleges v. Olson, 687 P.2d 429, 434 (Colo.1984). Resolution of standing involves (1) whether the plaintiff has suffered actual injury from the challenged governmental action; and (2) whether the injury is to a legally protected or cognizable interest. Wimberly v. Ettenberg, 194 Colo. 163, 168, 570 P.2d 535, 539 (1977); accord, e.g., State Board for Community Colleges v. Olson, 687 P.2d at 434; Conrad v. City and County of Denver, 656 P.2d 662 (Colo.1983); Marco Lounge, Inc. v. City of Federal Heights, 625 P.2d 982 (Colo.1981); Cloverleaf Kennel Club, Inc. v. Colorado Racing Commission, 620 P.2d 1051 (Colo.1980).
In determining whether standing exists, a court must accept as true all averments of material fact in a complaint. State Board for Community Colleges v. Olson, 687 P.2d at 434. If a complaint, along with any other evidence that the court in its discretion allows the plaintiff to submit, fails to establish any actual harm to the plaintiff, then the court must dismiss the case. Id. at 435. If the plaintiff meets this first requirement, the court must address whether the injury is to a legal interest that entitles the plaintiff to judicial redress. Id. Resolution of the second part of the test is a normative judgment that the injury is or is not actionable; in effect, a court holds either that the plaintiff has stated a claim for relief by demonstrating the existence of a legal right or interest that arguably has been violated by the action of the defendant, or that the plaintiff has failed to state a claim upon which relief can be granted because whatever injury the plaintiff might have sustained was not an injury to a legally protected right or interest. Id.; Conrad, 656 P.2d at 668; Cloverleaf Kennel Club, 620 P.2d at 1056-57.
Here, the only injury alleged by Friends of Chamber Music is that under the ordinance it is required to collect the admissions tax and pay the sum collected to Denver without compensation for the expenses of collection. We need not determine whether this allegation is sufficient to meet the first part of the test, an actual injury, because we conclude that the injury alleged is not to a legally protected right or interest.
Friends of Chamber Music asserts that the admissions tax deprives a vendor of property without due process of law because the vendor does not receive compensation for the expense it incurs in collecting the tax. This court held fifty years ago that the collector of taxes does not have standing to protest the validity of the taxing statute because the collector is not injured by the statute. Wade v. State, 97 Colo. 52, 47 P.2d 412 (1935). Since that time, however, we have held that a court first should look to the language of the statute in determining who has standing to challenge it. Cloverleaf Kennel Club, Inc. v. Colorado Racing Commission, 620 P.2d at 1058; see Sierra Club v. Morton, 405 U.S. 727, 732, 92 S.Ct. 1361, 1364, 31 L.Ed.2d 636 (1972).
The ordinance imposing the admissions tax contains specific provisions regarding who has standing to challenge tax assessment. It allows any aggrieved "taxpayer" to petition for administrative and court review of the validity of any particular assessment. Denver, Colo., Ordinance No. 590, Series of 1974 (codified at Denver, Colo. Revised Municipal Code § 53-361 to -366 (1982)). A "taxpayer" is defined to include "any person obligated to account to the manager of revenue for taxes collected." Id. (codified at § 53-345(6)). Therefore, the city council specifically granted standing to challenge particular assessments
The allegations of Friends of Chamber Music here are not sufficient to establish a legally protected interest. Although the district court did not directly address the standing of Friends of Chamber Music, the court, relying on City and County of Denver v. Duffy Storage and Moving Co., 168 Colo. 91, 450 P.2d 339, appeal dismissed, 396 U.S. 2, 90 S.Ct. 23, 24 L.Ed.2d 1 (1969), ruled that there was no merit to the vendor's assertion that the admissions tax deprived it of property without due process of law because it was not reimbursed for its tax collection expenses. In Duffy Storage and Moving Co., this court held that no constitutional violation occurred when an employer was required to withhold from employees and return to the city, without reimbursement for the costs of withholding, a two-dollar tax imposed by the city on all persons employed within city limits. 450 P.2d at 345. Duffy Storage and Moving Co. precludes the relief sought by Friends of Chamber Music. Thus, the ruling of the district court was the equivalent of a holding that the plaintiff had failed to state a claim upon which relief could be granted. Therefore, the injury alleged by Friends of Chamber Music was not to a legally protected right, and Friends of Chamber Music does not have standing to challenge the admissions tax.
Denver next contends that the district court should not have certified this action as a class action, or that the court should have required notice to individual taxpayers in accordance with C.R.C.P. 23(c)(2). Denver claims that the class should not have been certified because the plaintiffs made no allegations of fact beyond mere conclusory statements that the class satisfied the requirements of C.R.C.P. 23(a). See Levine v. Empire Savings & Loan Association, 197 Colo. 293, 592 P.2d 410 (1979). Denver further suggests that the taxpayer representative plaintiffs have demonstrated their inadequacy as representatives by failing to appeal a district court ruling. Neither of these allegations has any foundation in fact, as the plaintiffs'
The decision of whether to certify a class action lies within the discretion of the trial court and will not be disturbed unless the decision is clearly erroneous and an abuse of discretion. Mendoza v. United States, 623 F.2d 1338, 1349 (9th Cir.1980), cert. denied sub nom. Sanchez v. Tucson Unified School District No. 1, 450 U.S. 912, 101 S.Ct. 1351, 67 L.Ed.2d 336 (1981); Brito v. Zia Co., 478 F.2d 1200, 1204 (10th Cir.1973); Borwick v. Bober, 34 Colo.App. 423, 428, 529 P.2d 1351, 1354 (1974). We need not review the validity of the certification of the class in this case because we conclude that notice to the members of the taxpayer class was inadequate, resulting in class decertification.
C.R.C.P. 23(c)(2) requires that, for classes certified under 23(b)(3), "the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort." This rule is identical to the corresponding federal rule, and our interpretation of the rule is informed by the federal courts' interpretation of the federal provision. The "best notice practicable" may not include personal notice to all members of the class. In re Four Seasons Securities Law Litigation, 63 F.R.D. 422, 430 (W.D.Okla.), supplemented, 64 F.R.D. 325 (W.D.Okla.1974), aff'd 525 F.2d 500 (10th Cir.1975). Constructive notice by publication may supplement notice to identifiable class members, but such notice "can comport with due process only if there is a maximum opportunity for notice to the absentee class member ...." Greenfield v. Villager Industries, Inc., 483 F.2d 824, 831 (3d Cir.1973); In re Nissan Motor Corporation Antitrust Litigation, 552 F.2d 1088, 1097 (5th Cir.1977); see Berland v. Mack, 48 F.R.D. 121 (S.D.N.Y.1969). The class representative plaintiffs may be required to search through records accessible to the court in order to find names and addresses of class members "who can be identified through reasonable effort." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978); Eisen v. Carlisle & Jacquelin (Eisen IV), 417 U.S. 156, 173, 94 S.Ct. 2140, 2150, 40 L.Ed.2d 732 (1974); In re Nissan Litigation, 552 F.2d at 1099; Greenfield v. Villager Industries, 483 F.2d at 832. Such a search may be omitted if the effort required outweighs the likelihood of obtaining the names of class members. In re Nissan Litigation, 552 F.2d at 1099.
Most of the federal cases interpreting the "reasonable effort" required of plaintiffs to obtain the names of class members have arisen in circumstances in which one party or another owned records from which the names of class members could be culled. This case presents a different situation because the only manner suggested for obtaining the names of individual ticket purchasers is through the records of various ticket vendors. At the hearing held by the district court to determine what notice should be required, representatives of several ticket vendors testified about the accessibility of their records containing the names and addresses of season ticket holders and subscribers. Few of these witnesses, however, had the knowledge or authority to indicate whether the vendors would be willing to release their records for purposes
The court's order ignored the possibility that plaintiffs could obtain the names and addresses of season ticket holders and subscribers and send separate notices, even if the vendors would not include these notices in regular mailings.
In the present situation, in which several other reasonable steps could have been taken to identify and notify individual class members, those members cannot be bound by the judgment of the court under C.R.C.P. 23(c)(2). Therefore, we decertify the ticket purchaser class for purposes of the judgment in this case. We turn next to the issues raised by the named individual taxpayers.
The taxpayer plaintiffs maintain that the imposition of the admissions tax to contribute to retiring the stadium improvements bonds worked an illegal change in the bond ordinance approved by the voters for several reasons. Because the city charter provides that bonds may not be issued except upon the vote of the electorate, Denver, Colo., Charter § A6.17-1, the plaintiffs assert that funds to repay the bonds legally cannot come from different sources than
Denver's power to issue bonds derives from the state constitution and the city charter. The state constitution specifically provides that Denver "shall have the power to issue bonds upon the vote of the taxpaying electors, at any special or general election, in any amount necessary to carry out any of said powers or purposes, as may by the charter be provided." Colo. Const. art. XX, § 1. This power and the requirement that bond issuance be approved by the electorate is reiterated in the city charter. Denver, Colo., Charter § A6.17-1.
Procedures and requirements for bond elections are further defined in section 31-21-103(1), 12 C.R.S. (1977):
This provision does not limit the information to be given in the election announcement, for it does not even require that the election announcement indicate the use to which the proceeds from the bonds will be put. However, it is well established in Colorado that the proceeds from bonds may be used only for the purposes that the electorate has approved. City and County of Denver v. Currigan, 147 Colo. 125, 132, 362 P.2d 1060, 1064 (1961); McNichols v. City and County of Denver, 120 Colo. 380, 384-85, 209 P.2d 910, 912-13 (1949).
The plaintiffs rely on the cases requiring the proceeds from bonds to be used for the purposes approved by the electorate and on cases from other jurisdictions holding that the terms of retirement of bonds (such as interest rates and date of maturity) must comport with the terms approved by the electorate. The plaintiffs contend that these decisions lead to the conclusion that the interest and principal on the bonds must be paid out of the funds mentioned in the questions submitted to the voters. Some of the cases are inapposite because the decisions have disapproved changes in terms of the bonds that increased the indebtedness of the municipality or extended municipal repayment commitments. See, e.g., Kenton County v. Ankenbauer, 293 S.W.2d 873 (Ky.1956) (county could not change interest and amortization schedules of bonds after those questions submitted to voters); Skinner v. City of Santa Rosa, 107 Cal. 464, 40 P. 742 (1895) (city could not issue bonds payable semi-annually instead of annually as approved by voters). The cases involving proceeds from bonds diverted to other purposes also are irrelevant to the present situation because no claim has been made that the bonds issued were not used for the purposes approved by the voters.
The few cases that address the question of whether additional funds may be used to supplement voter approved income sources for bond retirement persuade us that the use of an admissions tax rather than an ad valorem tax to repay the stadium improvement bonds is permissible. In Brodhead v. City and County of Denver, 126 Colo. 119, 247 P.2d 140 (1952), this court held that Denver did not have to mortgage the facilities
The Nevada Supreme Court, in State ex rel. General Obligation Bond Commission v. Koontz, 84 Nev. 130, 437 P.2d 72 (1968), concluded that the electorate's specification of ad valorem taxes to retire bonds did not preclude the use of other sources for repayment. 437 P.2d at 77. The Nevada court's determination that an affirmative provision for the source of repayment of bonds should not be interpreted to imply a negative exclusion of other sources of repayment is persuasive. The use of funds from other sources is not forbidden by taxpayers who approve the assessment of ad valorem taxes for bond repayment. See also State ex rel. Utah Savings & Trust Co. v. Salt Lake City, 35 Utah. 25, 99 P. 255 (1908) (when sources of income for repayment of bonds are specified by statute, vote of electorate does not restrict the manner of repayment).
In the present case, the stadium refunding and improvement bonds were issued as approved by the voters. They were general obligation bonds of the city, and as such were payable by resort to ad valorem property taxes. It was appropriate that the voters should be informed of the city's obligation when voting on the bond issue. The admissions tax was a separate tax that the city council enacted by ordinance before the election, which was effective as a source of funds for the city whether or not the electorate adopted the bond ordinance. Denver's use of the funds from the admissions tax obviated the need for higher property taxes to repay the bonds and was an advantage for persons subject to property taxation in Denver.
The taxpayer-plaintiffs also assert that the admissions tax violates the equal protection and due process guarantees embodied in the fourteenth amendment of the United States Constitution and article II, section 25 of the Colorado Constitution. The plaintiffs specifically argue that the admissions tax deprives those who attend
As the classification between those who attend events at city facilities and those who attend events at facilities owned by others is not a constitutionally suspect classification, equal protection is guaranteed if there is a rational basis for the classification imposed. See Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975). This standard has often been applied to classifications for taxation purposes in Colorado: "the requirements of equal protection are satisfied if (1) the legislative classification bears some reasonable relation to a legitimate state interest, and (2) all persons within a class are treated in the same manner." First National Bank of Denver v. Board of County Commissioners, 189 Colo. 128, 132, 538 P.2d 427, 429 (1975); Western Electric Co. v. Weed, 185 Colo. 340, 353-54, 524 P.2d 1369, 1376 (1974). "In taxation, even more than in other fields, the legislature has greater freedom to classify." American Mobilehome Association, Inc. v. Dolan, 191 Colo. 433, 437, 553 P.2d 758, 762 (1976). The federal constitution grants states broad discretion in establishing classifications for taxation. Lehnhausen v. Lakeshore Auto Parts Co., 410 U.S. 356, 359, 93 S.Ct. 1001, 1003, 35 L.Ed.2d 351 (1973). "[P]ossible differences in tax burdens not shown to be substantial or which are based on discriminations not shown to be arbitrary and capricious ... do not fall within constitutional prohibitions." Lawrence v. State Tax Commission, 286 U.S. 276, 284, 52 S.Ct. 556, 559, 76 L.Ed. 1102 (1932).
Denver sets forth a rational basis for limiting imposition of the admissions tax to those who attend events at city facilities. The tax is intended primarily to pay for improvements at Mile High Stadium; a secondary purpose is to improve other city facilities. Therefore, the city council reasonably limited the burden of the tax to those who attend events at city facilities.
The appellants next maintain that the admissions tax violates due process
As long as the proceeds are devoted to public and governmental purposes, otherwise valid taxes may be imposed upon a group of people who will not necessarily benefit from the funds collected. Millis v. Board of County Commissioners, 626 P.2d 652 (Colo.1981); Hughes v. State, 97 Colo. 279, 286-87, 49 P.2d 1009, 1012 (1935). The United States Supreme Court set forth the reasons that such a tax is not an unconstitutional deprivation of property in Carmichael v. Southern Coal and Coke Co.:
None of the arguments raised by the plaintiffs invalidates the admissions tax. It is an appropriate means of supplementing the revenues necessary to retire the stadium improvement bonds, and it does not conflict with the state and federal guarantees of equal protection and due process of law.
The judgment of the district court is affirmed in part and reversed in part.
KIRSHBAUM, J., does not participate.
Notice to members of the class is not required if the class is certified under C.R.C.P. 23(b)(1) or (b)(2). Those subsections provide: