Romer v. Board of County Commissioners

JUSTICE SCOTT delivered the Opinion of the Court.

[69] JUSTICE KOURLIS dissenting:

[70] Because I believe that the Board of County Commissioners of Pueblo County (BOCC) is acting here under its express and distinct statutory authority to manage and budget the affairs of Pueblo County, and not in its role as agent for the State Department of Social Services, I conclude that the County has standing to sue in this case and I therefore respectfully dissent. [71] Any analysis of this area of the law rightfully begins with the general proposition that a subordinate county agency has no standing or legal authority to question or obtain judicial review of an action taken by a superior state agency. See Lamm v. Barber,192 Colo. 511,519,565 P.2d 538,544(1977). In Lamm, this court stated that a subordinate county official "had no more standing to question the validity of the action of the Board [of Assessment Appeals] than a lower court has to question the validity of the mandate of the reviewing court. [The official] was obligated to carry out the mandate of the Board. There is no legal justification for his defiance . . . ." Id. at 520,565 P.2d at 544(quoting People ex rel. State Bd. ofPage 580Equalization v. Hively,139 Colo. 49,74,336 P.2d 721,735(1959)).

[72] That concept has its roots in the general notion that a subordinate agency may not challenge the principal's policies by way of court process. Similarly, the United States Supreme Court has held that policy matters between or inside governmental agencies should not be resolved by the courts. See Director, Office of Workers' Compensation Programs v. Newport News Shipbuilding and Dry Dock Co.,514 U.S. 122,127(1995).

[73] Boards of county commissioners serve a variety of functions, and are certainly not limited to acting as subordinate agencies. One discrete function involves the duties prescribed under the Human Services Code, to wit: "the county departments or other state designated agencies, where applicable, shall serve as agents of the state department and shall be charged with the administration of public assistance and welfare and related activities in the respective counties in accordance with the rules and regulations of the state department." 16-1-118(1), 6 C.R.S. (1997). However, and much more broadly, boards of county commissioners have the authority to levy taxes, make assessments, and operate county government. See30-11-107, 9 C.R.S. (1997). Although the authority delegated to county commissioners stems from the state, see Board of County Comm'rs of Douglas County, Colo. v. Bainbridge, Inc.,929 P.2d 691,699(Colo. 1996), such boards cannot be said to be acting as agents of the state for all purposes. Indeed, the General Assembly has directed that "[t]he County shall perform its public assistance and welfare duties, responsibilities, and activities separate and apart from the duties and responsibilities of the Board of County Commissioners."26-1-116(3), 8 C.R.S. (1997).

[74] Hence, in my view the appropriate inquiry in this case is whether the BOCC was, indeed, acting in its agency capacity in the context of this lawsuit. I conclude that it was not. [75] The BOCC was acting in its capacity as a spending and taxing authority, not in its capacity as agent for the State Department of Social Services, when it brought this action.¹¹It was attempting to protect its taxpayers from an increase in property tax rates that could be occasioned by a deficit. This activity falls within the broad powers granted to boards of county commissioners set forth in section30-11-107, not within the discrete subordinate functions found in section 16-1-118(1).

[76] In Board of County Commissioners of Jefferson County v. Merit System Council,662 P.2d 1093(Colo.App. 1982), the court of appeals addressed a circumstance in which a board of county commissioners sought judicial review of an order entered by the Merit System Council reinstating a terminated employee. The court of appeals held that "the standing of the Board of County Commissioners depends upon the standing of the County Board and the County Department of Social Services to maintain an action for judicial review. We conclude that neither . . . has standing to seek judicial review under the circumstances here." Id. at 1094. Certainly it is good law that the County Board of Social Services and the County Department of Social Services do not have standing to sue the State Department of Social Services. The former are the agents of the latter, and are empowered to act upon the State policies — not to challenge them.

[77] A basic principle of the law of standing is that a representative entity has standing to seek relief only if the party on whose behalf that entity is acting would also have standing in its own right. See Denver Classroom Teachers Ass'n v. Denver Sch. Dist. No. 1,738 P.2d 414,415(Colo.App. 1987) (finding standing where members of the association would have standing to sue in their own right under facts alleged). Thus, if the Board of County Commissioners is acting in lieu of the County Department of Social Services orPage 581County Board of Social Services, it would not have standing. The court of appeals' holding in Merit System Council falls within this general precept.

[78] However, I find a critical distinction in the case currently at issue. Here, the BOCC is not acting as the Board of Social Services challenging an internal policy decision; rather the BOCC is acting as a separate and distinct entity whose budgetary responsibilities are directly and disproportionately impacted by the subject matter of the lawsuit. The authority to levy and assess taxes and manage the whole county budget cannot come from the Colorado Board of Human Services because that board has no such power and an agent can have no greater power than its principal. See Restatement (Second) of Agency 12 cmt. a (1958). Rather, the BOCC's powers in this context derive directly from the Colorado Constitution, Article XIV and from sections30-11-101and -107, 9 C.R.S. (1997). The BOCC here is seeking to vindicate its duty to manage the county budget, which duty is not undertaken as an agent of the Board of Human Services, but rather as an independent governmental body. [79] I turn then to the Administrative Procedures Act (APA), because the action sought to be redressed is an agency action. Section24-4-106(4) of the APA provides that: "Any person adversely affected or aggrieved by any agency action may commence an action for judicial review in the district court within thirty days after such agency action becomes effective . . . ."24-4-106(4) 7 C.R.S. (1997).

[80] The General Assembly has defined a county as a "person" and not as an "agency" for purposes of the APA. See24-4-102(12);24-4-102(3), 7 C.R.S. (1997). See also Douglas County Bd. of Comm'rs v. Public Utils. Comm'n,829 P.2d 1303(Colo. 1992). Hence, there is a basis for asserting standing by the BOCC under the Act.¹²

[81] The next inquiry then, is whether the BOCC is adversely affected or an aggrieved party within the meaning of section24-4-106of the APA. This analysis parallels the general inquiry under the law of standing: whether the party has been injured in fact and whether the injury is to a legally protected right. See Wimberly v. Ettenberg,194 Colo. 163,168,570 P.2d 535,539(1977).

[82] The county's injury in fact is clearly the $1,612,187 deficit alleged in the pleadings. Whether the injury is protected at law is less clear, but in my view the question should be answered in the affirmative at this stage of the proceedings.

[83] Determining whether the asserted injury is one protected by law comes perilously close to deciding the merits of the lawsuit rather than the right of the county to maintain the lawsuit. This case is before us at the starting gate, and we are called upon to determine whether the parties may run the race — not who will win. The case was dismissed by the trial court on summary judgment. Pursuant to the standards applicable to a summary judgment motion, all doubts legitimately raised by any evidence or pleadings before the court must be resolved against the moving party. See Smith v. Boyett,908 P.2d 508,514(Colo. 1995).

[84] The BOCC seeks injunctive and declaratory relief under the terms of sections26-1-121(1)(c), -122(5) and -126(5). Subsection -126(5) contains the provisions regarding the reduction of expenditures to match available funding. The subsection was a part of House Bill No. 1376, enacted on June 11, 1985. See ch. 58, sec. 2,26-1-126(5), 1985 Colo. Sess. Laws 289, 290. House Bill 1376 was drafted in reaction to this court's decision in Colorado Department of Social Services v. Board of County Commissioners,697 P.2d 1(Colo. 1985), holding that the General Assembly was required to fund the Contingency Fund in a sufficient amount to fulfill the justifiable claims of counties eligible for such assistance.Page 582

[85] Soon after our decision in Colorado Department of Social Services, the General Assembly noted its disagreement with the court's conclusion by enacting legislation which provides that: (1) legislation passed by one session of the General Assembly cannot bind future legislative sessions to appropriate any sums of money, see2-4-215, 1 C.R.S. (1997); (2) the General Assembly has absolute discretion to "determine annually the level of funding" in the Contingency Fund, and the existence of the Contingency Fund does not "result in any state liability for amounts not appropriated" to that fund, see26-1-126.5, 8 C.R.S. (1997); and (3) the appropriate response to a shortage of funds in the Contingency Fund is a reduction in the rate of state social services expenditures to be implemented by the executive director of the department. See26-1-126(5).

[86] House Bill 1376, as enacted, satisfies the requirement that the harm suffered be to a legally protected interest. The County's interests are specifically protected by the language of the statute, and the statute was designed to address the very injury that has occurred. See Maurer v. Young Life,779 P.2d 1317(Colo. 1989).¹³ [87] I would thus affirm the court of appeals' conclusion that the BOCC has met the requirements necessary to maintain an action in court and would affirm the judgment of the court of appeals.

[88] JUSTICE MARTINEZ dissenting:

[89] As a subordinate arm of the state, the County must satisfy three requirements in order to seek judicial review of an action of a state agency. First, the County must point to a statutory provision conferring a right upon the County to seek this review. See Maurer v. Young Life,779 P.2d 1317,1320(Colo. 1989); Martin v. District Court,191 Colo. 107,109,550 P.2d 864,866(1976) (the "Martin test"). Next, the County must satisfy the two-part standing inquiry described in Wimberly v. Ettenberg,194 Colo. 163,168,580 P.2d 535,539(1977). Under the Wimberly test, a court must determine "(1) whether the plaintiff was injured in fact, [and] (2) whether the injury was to a legally protected right." Id., 580 P.2d at 539. In my view, the County has fulfilled these requirements, and therefore may seek review of the Department's actions in this case. [90] Generally speaking, "counties do not have standing to obtain judicial review of a decision of a superior state agency." Douglas County v. Public Utilities Comm'n,829 P.2d 1303,1309(Colo. 1992). This general rule does not apply, however, where the legislature has granted the county the right to seek such review. See Maurer,779 P.2d at 1320. Thus, even where a "judge-made prudential rule" suggests a different public policy regarding inter-agency disputes, maj. op. at 14, we must defer to the legislature's expression of public policy and intent to grant standing to a subordinate agency such as a county. This legislative grant need not take any particular form or use any particular language. It is sufficient that relevant statutory provisions evidence a legislative intent to allow the county to appeal the decision of the state agency.

[91] For example, in Douglas County, we held that the legislature conferred a right upon the county to seek judicial review of a decision by the Public Utilities Commission (the "PUC"). We applied the Martin test in that case because we assumed, without deciding, that the county was subordinate to the PUC. See Douglas County,829 P.2d at 1308-10. We recognized the county's standing to appeal in that case because the General Assembly had granted the county the right to seek judicial review in satisfaction of the Martin test (which test is applicable to subordinatePage 583agencies seeking judicial review). See id. This conclusion made it unnecessary to decide whether the county was actually subordinate to the PUC, and thus we made no finding on this issue.

[92] In applying the Martin test in Douglas County, we held that the county had standing despite the fact that no single statutory provision expressly granted this right to the county. Section40-6-115(1) of the Public Utilities Law provided that the PUC and "each party to the action or proceeding before the [PUC] shall have the right to appear in the review proceedings." See40-1-101to40-7-111, 17 C.R.S. (1984). Additionally, section24-4-106(4) of the State Administrative Procedure Act (the "APA") provided that "any person adversely affected or aggrieved by any agency action may commence an action for judicial review" of the agency's decision. See24-4-101to -108, 10A C.R.S. (1988).

[93] In answering the standing inquiry, we reasoned that section24-4-106(4), when "[r]ead together with section40-6-115(1)," evinced a legislative intent to allow the county, as a party to the PUC proceeding, to initiate an appeal of the PUC's actions. Douglas County,829 P.2d at 1308. Implicit in our holding was a finding that neither statute, standing alone, expressly conferred a right upon the county to seek judicial review. Rather, a comprehensive reading and interpretation of the relevant statutes lead to our conclusion that the General Assembly intended to grant the county standing to challenge a decision of the superior state agency.

[94] The circumstances of the instant case charge this court with a similar task of statutory construction. No single statutory provision expressly confers upon the County the right to seek judicial review of the Department's acts, or failures to act, in this case. As discussed above, however, our inquiry does not end with this fact. Instead, we must investigate those statutory provisions that relate specifically to (1) the Department's duties as alleged by the County and (2) the County's recourse in the event the Department fails to fulfill these duties. If, when read together, these statutory provisions evidence a legislative intent to allow the County to seek review of the Department's decisions in this case, the first requirement of the standing inquiry is satisfied.

[95] The County alleges that section26-1-126(5) of the Colorado Human Services Code imposes a duty upon the Department to reduce the statewide rate of expenditures whenever necessary to avoid or reduce deficits in county social services budgets. See26-1-101to -201, 8 C.R.S. (1997). Section26-1-126(5) ("Subsection 5") outlines procedures for administering the state-funded Contingency Fund. The Contingency Fund was established to assist counties having difficulties meeting their funding obligations with respect to certain social services programs. Where the Contingency Fund does not contain sufficient funds to provide this relief to counties, Subsection 5 prescribes a course of action. Subsection 5 provides, in part:

If state and county appropriations are insufficient to meet the administrative and program costs of public assistance and the administrative costs of medical assistance and food stamps, then the executive director of the department of social services and the state board of social services shall act pursuant to sections26-1-121(1)(c) and26-1-122(5) to reduce the rate of expenditures so that it matches the available funds.

[96]26-1-126(5) (emphasis added).

[97] Because the language of Subsection 5 is mandatory, I agree with the County's contention. Subsection 5 imposes a duty upon the Department to cause social services expenditures to match available funds. The performance of this duty protects the County from incurring potential deficits not covered by the Contingency Fund. After receiving notice of the reduced rate of social services expenditures, the County may adjust its spending to match its funding. By failing to reduce state expenditures to match the funds available in the Contingency Fund, the Department creates the possibility that the County's expenditures may exceed its funding.

[98] Therefore, because the interest to be protected by Subsection 5 is that of the County, the duty prescribed by Subsection 5 is onePage 584owed the County. This fact alone, however, does not confer upon the County the right to seek judicial review. Rather, it delineates the County's substantive interest in the Department's performance of its duties under Subsection 5. When read in conjunction with Section24-4-106(4) of the APA, however, Subsection 5 does provide a statutory basis upon which a County may seek judicial review of the Department's decisions.

[99] Section24-4-106(4) describes the procedures available to parties who have been aggrieved by the actions of an agency. See24-4-106(4). As noted above, this section affords any "person adversely affected or aggrieved" by an agency's decision the right to obtain judicial review of that decision. Id. The APA includes a county within its definition of a "person" entitled to seek judicial review. See24-4-102(12), 7 C.R.S. (1997). According to the County's allegations, it has been adversely affected by the Department's failure to perform its obligations under Subsection 5. Consequently, Subsection 5 provides a substantive legal right pursuant to which the County may seek relief when accompanied by the procedural aspects of agency review in section24-4-106(4).

[100] This analysis parallels our decision in Douglas County. See829 P.2d at 1310. In neither case did the General Assembly explicitly grant the county the right to appeal the superior agency's decision. In Douglas County, we did not find that the language of section40-6-115(1), by itself, granted the county the right to appeal the PUC's decision. Rather, it was the interplay between this section and the APA which proved critical and which demonstrated the General Assembly's intent to allow the county to appeal. Similarly, in this case, the legislative intent to allow the County to seek judicial review is apparent in the interplay between the APA and Subsection 5.

[101] The fact that the General Assembly intended to allow the County to compel the Department to perform its duties under Subsection 5 is illustrated by the legislative history of this legislation. During a discussion of the impact of Subsection 5, Senator Fowler noted that, when it becomes apparent that the Contingency Fund is insufficient to provide full relief to the counties from their budgetary shortfalls, the counties may "make application to the executive director of the department of social services . . . and the executive director and the board of social services shall reduce overall funding from all the programs in the State of Colorado." See Senate Journal, 55th Gen. Assembly, 1st Reg. Sess., Vol. 2 at 1072 (May 17, 1985) (emphasis added).

[102] Moreover, the circumstances surrounding the adoption of Subsection 5 provide reason to believe that the General Assembly intended to allow counties to seek judicial review of the Department's decisions regarding the Contingency Fund. Subsection 5 was a part of House Bill No. 1376, enacted on June 11, 1985. See ch. 58, sec. 2,26-1-126(5), 1985 Colo. Sess. Laws 289, 290. House Bill No. 1376 was a reaction to our decision in Colorado Department of Social Services v. Board of County Commissioners,697 P.2d 1(Colo. 1985) ("CDSS"). In that case, Pueblo County's Board of County Commissioners (the "Board") brought a counterclaim against the Department seeking, inter alia, reimbursement for certain county overexpenditures for foster care costs due to a shortage of state funding. We held that the Board was not entitled to this reimbursement, but that the relevant statute "require[d] sufficient funding of the county contingency fund to fulfill the justifiable claims of counties eligible for such assistance." Id. at 23.

[103] The General Assembly responded with House Bill No. 1376 to make clear three points: (1) legislation passed by one session of the General Assembly cannot bind future legislative sessions to appropriate any sums of money, see2-4-215, 1 C.R.S. (1997); (2) the General Assembly has absolute discretion to "determine annually the level of funding" in the Contingency Fund, and the existence of the Contingency Fund does not "result in any state liability for amounts not appropriated" to that fund, see26-1-126.5, 8 C.R.S. (1997); and (3) the appropriate response to a shortage of funds in the Contingency Fund is a reduction in the rate of state social services expenditures to be executed by the executive director of the Department, see Subsection 5.Page 585

[104] Significantly, House Bill No. 1376 did not address the issue of a county's right to seek judicial review of the Department's decisions regarding the Contingency Fund. If the General Assembly had wished to completely eliminate this sort of judicial review initiated by a county, it certainly could have done so. The General Assembly chose instead to address only the appropriations issue. Indeed, the General Assembly would have had no need to address the appropriations issue unless it assumed that entities such as the Board in CDSS do have a right to seek judicial review in this context. This assumption by the General Assembly was reasonable in light of the holding in CDSS, in which the Board's right to seek judicial review was enforced. See discussion infra Part I.B.

[105] Given these circumstances, it would have been quite peculiar for the General Assembly to enact legislation that explicitly granted a county standing to seek judicial review of the Department's decisions regarding the Contingency Fund. Because the General Assembly assumed that a county already possessed this standing, and implicitly intended this standing to continue after House Bill No. 1376, the General Assembly had no reason to affirmatively provide this standing through new legislation. To require an explicit legislative declaration of standing in these circumstances, as the majority does, is to elevate form over substance and frustrate legislative intent. I would hold that the County has satisfied the first requirement of standing because the County has identified legislative authorization for it to seek judicial review of the Department's decisions in this case.

[106] In addition to satisfying the first requirement of standing, the County has established that its claims satisfy the Wimberly inquiry into standing. As noted above, a plaintiff must allege that it has suffered an injury in fact to a legally protected right. See Wimberly,194 Colo. at 168,580 P.2d at 539. The County's injury in fact is the $1,612,187 deficit it allegedly incurred as a result of the Department's failure to reduce the rate of social services expenditures in accordance with Subsection 5.

[107] The County has also shown that this injury is to a legally protected right. As Maurer explained, a plaintiff may satisfy this requirement in one of two ways. See779 P.2d at 1325. The plaintiff may demonstrate that the harm allegedly suffered is protected against by a statutory or constitutional provision. See id. The County has done this by demonstrating that a legislative intent to protect the county's interest in ensuring the Department's reduction of the level of state social services expenditures is fairly inferable from Subsection 5. Furthermore, the County has satisfied the second Maurer method of meeting this Wimberly requirement by also demonstrating that the General Assembly conferred upon the County the right to seek judicial review of the Department's decisions. See id. [108] As discussed above, I believe the legislature intended to allow entities such as the County to obtain judicial review of the Department's decisions in this context. In addition to this legislative grant of standing, I believe that our decision in CDSS must be considered. In that case, we addressed the merits of the Board's claims against the Department, thereby implicitly holding that the Board had standing to seek judicial review. See CDSS,697 P.2d at 23.

[109] The requirement that a plaintiff have standing to sue "ensures that the jurisdiction of the courts is exercised only when an actual case or controversy exists." People v. Highland Irrigation Co.,893 P.2d 122,127(Colo. 1995). In this sense, the standing requirement is analogous to the existence of subject matter jurisdiction. See Martin,191 Colo. at 109,550 P.2d at 866(plaintiff's lack of standing extinguished court's subject matter jurisdiction); see also Farmers Insur. Exch. v. District Court,862 P.2d 944,946(Colo. 1993) (trial court may not assume jurisdiction where plaintiff lacks standing). Thus, standing, like subject matter jurisdiction, cannot be conferred by the parties. See Clinic Masters, Inc. v. District Court,192 Colo. 120,123,556 P.2d 473,475(1976). Accordingly, standing is a jurisdictional prerequisite to every case and may be raised at any stage of the proceedings, including on appeal. See Peters v. Smuggler-Durant Mining Corp.,Page 586910 P.2d 34,37(Colo.App. 1995), aff'd,930 P.2d 575(Colo. 1997); Adams v. Neoplan U.S.A. Corp.,881 P.2d 373,374(Colo.App. 1993); City of Aspen v. Artes-Roy,855 P.2d 22,23(Colo.App. 1993); see also O'Bryant v. Public Utilities Comm'n,778 P.2d 648,652(Colo. 1989) (standing is a "threshold issue").

[110] Because standing is a jurisdictional prerequisite, a court may raise the issue sua sponte at any stage of the proceedings. See CFI Steel Corp. v. Colorado Air Pollution Control Comm'n,199 Colo. 270,274,610 P.2d 85,88(1980) (approving the court of appeals' decision to raise standing issue sua sponte); see also Director v. Newport News Shipbuilding Dry Dock Co.,514 U.S. 122,125(1995) (same); Juidice v. Vail,430 U.S. 327,331(1977) (court obliged to raise standing issue sua sponte). Thus, by addressing the merits of a plaintiff's claims, a court implicitly holds that the plaintiff has standing to assert those claims, regardless of whether the parties raised the standing issue. See People v. J.M.,854 P.2d 1346,1350(Colo.App. 1992) (when court fails to raise jurisdictional issue and enters judgment on the merits, it is presumed that court determined that jurisdiction was proper).

[111] In CDSS, the Board's claims against the Department were grounded in the Department's failure to reimburse the Board for certain social services expenditures. See CDSS,697 P.2d at 18. We addressed the Board's claims and found that, while the Board was not entitled to reimbursement, the statute required the Contingency Fund to be fully funded. See id. at 19-23. Of course, by addressing the merits of the Board's contentions, we implicitly held that the Board had standing to assert them.

[112] This view of CDSS is supported by the time-honored principle that "[e]very court in rendering a judgment tacitly, if not expressly, determines its jurisdiction over the parties and the subject matter." Stoll v. Gottlieb,305 U.S. 165,171-72(1938); accord Corbett v. MacDonald Moving Services, Inc.,124 F.3d 82,88(2d Cir. 1997); Jackson v. Southern Ry. Co.,317 F.2d 532,534n. 1 (5th Cir. 1963); see also People v. J.M.,854 P.2d at 1350. Thus, our decision that the Board had standing in CDSS cannot be ignored, even though this determination was rendered tacitly.

[113] Given the interaction between the General Assembly and our decision in CDSS, see discussion supra Part I.A., I would decide this issue consistent with our implicit resolution of the standing issue in CDSS. "Considerations of stare decisis have special force in the area of statutory interpretation, for here, unlike in the context of constitutional interpretation, the legislative power is implicated," and the legislature remains free to alter what we have done. Hilton v. South Carolina Pub. Rys. Comm'n,502 U.S. 197,201(1991). As discussed above, the General Assembly's response to CDSS was to presume that entities such as the Board have a right to seek judicial review, and to prevent direct interference with the General Assembly's discretion to fund the Contingency Fund. See2-4-215;26-1-126.5. Because we assumed standing in CDSS without addressing the issue, CDSS does not have precedential value with respect to this issue and we are not bound by it. However, by reaching a conclusion which is inconsistent with our earlier assumption in CDSS, we are disrupting and frustrating the settled expectations of the General Assembly.

[114] Therefore, today's decision by the majority is not consistent with our implicit determination of standing in CDSS and it changes the law as it has been reasonably perceived by the legislature since CDSS was decided. Because I would give effect to the legislature's intent and remain consistent with the expectation raised by CDSS, I dissent from the majority's holding. [115] In both of its complaints in this matter, the County seeks injunctive and declaratory relief, as well as reimbursement for its budgetary deficit. The Department contends that, issues of standing aside, the legislature has precluded entities such as the County from receiving such monetary awards. In support of this theory, the Department points to sections2-4-215and26-1-126.5. As previouslyPage 587explained, section2-4-215provides that one session of the General Assembly cannot bind future sessions to appropriate any sums of money. See2-4-215. In section26-1-126.5, the legislature expressly rejected the notion that any specific General Assembly is required to fully fund the Contingency Fund, and rejected any implication "which would result in any state liability for amounts not appropriated for such fund."26-1-126.5.

[116] In my view, neither of these sections addresses the issue of whether the County may eventually recover monetary damages in this case. The County does not allege liability resulting from the General Assembly's failure to appropriate certain amounts for the Contingency Fund. Rather, the County alleges liability resulting from the Department's failure to reduce the level of state expenditures to match funds appropriated for the Contingency Fund. According to the County, if the Department had properly performed its obligations under Subsection 5, the County would not have incurred the budgetary deficit.

[117] Thus, the County does not seek to force the General Assembly to appropriate any particular sums for the Contingency Fund, but instead seeks to force the Department to react appropriately to the amounts actually appropriated by the General Assembly. Neither section2-4-215nor section26-1-126.5speaks to this issue. Furthermore, nothing in the plain language of these sections immunizes the state from any liability in any form for any reason. Rather, these sections address only liability that directly results from the General Assembly's failure to fund the Contingency Fund. As explained above, the County does not allege such liability. Accordingly, while I intimate no view on whether the County may actually receive injunctive, declaratory or monetary relief in this case after a hearing or trial on the merits, I emphasize that the statutes identified by the Department do not prohibit recovery of monetary damages. [118] The County has satisfied all of the requirements for a subordinate agency to seek judicial review of a decision by a superior state agency. Thus, I would hold that the County has standing to proceed with this litigation. I would affirm the judgment of the court of appeals and remand this case for a trial on the merits. Accordingly, I respectfully dissent.