Opinion
No. 83CA0873
Decided February 7, 1985.
Appeal from the District Court of the City and County of Denver Honorable Gilbert A. Alexander, Judge
National Right to Work Legal Defense Foundation, Inc., Joseph J. Hahn; Jay S. Horowitz, P.C., Jay Horowitz, Gregory D. Schetina; Davis, Graham Stubbs, Robert L. Morris, for Plaintiffs-Appellants.
Hobbs/Bethke Associates, Larry F. Hobbs, William P. Bethke, for Defendant-Appellee Denver Classroom Teachers Association.
Semple and Jackson, Martin Semple, for Defendant-Appellee Board of Education.
Division I.
Plaintiffs, employees of the defendant Board, brought suit against the Denver Classroom Teachers Association (DCTA) and the Board seeking a declaratory judgment relative to, and injunctive relief from, a portion of a collective bargaining agreement providing for automatic deduction of union dues from employees' paychecks. The trial court dismissed the complaint. We affirm.
We accept as true the allegations of the complaint. Among these are the following: That the DCTA is the exclusive bargaining representative of all teachers and social workers employed by the Board; that plaintiffs are not members of the DCTA or any other union; and that Article 31-3 of the 1982-85 collective bargaining agreement provides for the automatic deduction of union dues from the salary of all employees, including non-DCTA members, unless a non-union employee executes a revocation form at a site designated by the DCTA.
Plaintiffs' complaint argues that Article 31-3 violates their statutory and contractual right to compensation by reducing the salary they receive and constitutes a taking without due process in violation of the Colorado and U.S. Constitutions. The complaint further asserts that the "opt-out" provision is a violation of plaintiffs' freedom of association and expression. It is undisputed that all the plaintiffs exercised the opt-out provision and therefore have received their full salaries.
The trial court dismissed the complaint on the grounds that plaintiffs, having suffered no loss of income or other injury as a result of the deduction provision, lacked standing as to their claims relating to diminishment of their compensation as a due process violation. The court further found that plaintiffs failed to state a claim upon which relief could be granted as to any violation of their right of free association or expression and on that basis dismissed those claims.
I.
On appeal, plaintiffs first contend that the possibility that intentionally or through inadvertence they may fail to execute the revocation provisions in the future is sufficient to confer standing upon them to assert claims arising from their statutory and contractual right to compensation. We disagree.
The determination of standing requires application of a two part test: (1) Whether the plaintiffs have suffered actual injury from the challenged governmental action; and (2) whether the injury is to a legally protected interest. Wimberly v. Ettenberg, 194 Colo. 163, 570 P.2d 535 (1977). In determining whether standing has been established, all averments of material facts in a complaint must be accepted as true. State Board for Community Colleges Occupational Education v. Olson, 687 P.2d 429 (Colo. 1984). If from the allegations of the complaint it is speculative whether the harm complained of will result from the challenged governmental action, the complaint fails to satisfy the injury in fact requirement. Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 22, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976); see State Board for Community Colleges and Occupational Education v. Olson, supra.
Here, it is undisputed that none of the plaintiffs have suffered any loss of income from the withholding provision of Article 31-3. Moreover, it is evident from the allegations of the complaint that plaintiffs can avoid any such loss of income in the future by exercising the opt-out procedure. Under these circumstances, the injury in fact requirement has not been met as to plaintiffs' claim of income loss. Their allegations in this regard being insufficient, we conclude that the trial court did not err in dismissing this claim.
II.
Plaintiffs next contend that the exercise of the requirement that they follow the revocation procedure in order to avoid payment of the DCTA dues requires that they disclose their ideological preferences and is thus violative of their freedom of association and expression. Again, we disagree.
The complaint alleges only that plaintiffs must appear in person at a site designated by the DCTA in order to declare their status and their desire to take advantage of the opt-out provision. There is no allegation that plaintiffs must reveal any political or ideological affiliation or associational tie other than non-membership in the DCTA, nor that those exercising the opt-out provision are subject to harassment or reprisals. The failure of plaintiffs to allege the manner in which their associational rights are impaired by the opt-out provision of Article 31-3 distinguishes this case from N.A.A.C.P. v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958) (compelled disclosure of membership lists) and its progeny. See Voss v. United States, 573 F. Supp. 957 (D.Colo. 1983). Plaintiffs' allegations are thus insufficient to state a prima facie claim of a violation of their right of free association and expression, and dismissal of this claim was therefore proper.
Judgment affirmed.
JUDGE PIERCE concurs.
JUDGE STERNBERG concurs in part and dissents in part.