     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                           February 13, 2020

                                2020COA27

No. 18CA2345, Stanczyk v. Poudre School Dist R-1 —
Education — Teacher Employment, Compensation, and
Dismissal — Nonprobationary Portability


     A division of the court of appeals considers whether a school

district may restrict a teacher’s right under section 22-63-203.5,

C.R.S. 2019, to transfer his or her nonprobationary status from one

school district to another, known as nonprobationary portability.

The division concludes that a school district may not impose

unreasonable restrictions on a teacher’s exercise of the right to

nonprobationary portability. If a teacher complies with the

statutory requirements for nonprobationary portability, the hiring

school district must grant the teacher nonprobationary status. In

this case, the defendants’ restrictions on a teacher’s right to

exercise the right to nonprobationary portability were unreasonable
because they allowed defendants to decide unilaterally whether the

teacher could obtain nonprobationary status.

     Because the defendants unreasonably restricted the teacher’s

ability to exercise the statutory right to nonprobationary portability,

the district court erred in awarding summary judgment in favor of

the defendants. The division holds that the plaintiffs are entitled to

summary judgment on their claim that the defendants’ restrictions

violated the teacher’s right to nonprobationary portability and

remands for further proceedings on the plaintiffs’ remaining claims.
COLORADO COURT OF APPEALS                                           2020COA27


Court of Appeals No. 18CA2345
Larimer County District Court No. 17CV30480
Honorable Gregory M. Lammons, Judge


Patricia Stanczyk and Poudre Education Association,

Plaintiffs-Appellants,

v.

Poudre School District R-1 and Poudre School District R-1 Board of Education,

Defendants-Appellees.


            JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
                AND CASE REMANDED WITH DIRECTIONS

                                  Division III
                         Opinion by JUDGE LIPINSKY
                         Webb and Dunn, JJ., concur

                         Announced February 13, 2020


Brooke Copass, Rory Herington, Charles Kaiser, Denver, Colorado, for
Plaintiffs-Appellants

Semple, Farrington, Everall, & Case, P.C., M. Brent Case, Jonathan Fero, Mary
Barham Gray, Denver, Colorado, for Defendants-Appellees

Philip J. Weiser, Attorney General, Julie C. Tolleson, First Assistant Attorney
General, Jenna Zerylnick, Assistant Attorney General, Denver, Colorado, for
Amicus Curiae Patricia Stanczyk and Poudre Education Association
¶1    In 2010, the Colorado General Assembly enacted sweeping

 changes to the state’s teacher evaluation and compensation system

 that, for the first time, tied a teacher’s nonprobationary status to

 his or her performance. As with the prior concept of tenure, a

 teacher who achieves nonprobationary status receives job

 protections not available to other teachers, including protection

 against unreasonable dismissal and hearing rights.

¶2    The General Assembly further provided that a

 nonprobationary teacher has the right to transfer his or her

 nonprobationary status from one school district to another by

 submitting specified evidence of his or her effectiveness as an

 educator. This statutory right is known as nonprobationary

 portability.

¶3    In this case, we consider the narrow question whether a school

 district may restrict a teacher’s ability to exercise the right of

 nonprobationary portability through use of a job application and

 form employment contract that require the teacher to relinquish the

 right to nonprobationary portability as a condition of employment.

 (We refer to such a job application and employment agreement as

 the Restrictions.)


                                     1
¶4    Plaintiffs, Patricia Stanczyk and Poudre Education Association

 (Association), allege that defendants, Poudre School District R-1

 and Poudre School District R-1 Board of Education (the Poudre

 Defendants), unlawfully stymied Stanczyk’s and similarly situated

 teachers’ exercise of their right to nonprobationary portability

 through use of the Restrictions. The Poudre Defendants deny that

 their application form and form employment agreement are

 unlawful. In the alternative, they assert that, under their

 prerogative of local control, school districts may disregard the

 statutory mandate of nonprobationary portability.

¶5    We affirm in part and reverse in part:

      •    We affirm the district court’s award of summary

           judgment to the Poudre Defendants on Stanczyk and the

           Association’s claim for violation of article XI, section 2 of

           the Colorado Constitution.

      •    We affirm the district court’s award of summary

           judgment to the Poudre Defendants on Stanczyk’s claims

           for breach of statutory contract, violation of due process

           rights, and mandamus relief.




                                    2
•   We reverse the district court’s award of summary

    judgment to the Poudre Defendants on Stanczyk and the

    Association’s claims for declaratory judgment.

•   We hold that the Association is entitled to summary

    judgment on both the declaratory judgment claims

    because the Poudre Defendants’ use of the Restrictions is

    unlawful and, under the nonprobationary portability

    statute, the Poudre Defendants must provide a qualifying

    teacher with nonprobationary status upon the teacher’s

    compliance with the statutory requirements for

    nonprobationary portability.

•   We hold that Stanczyk is entitled to summary judgment

    on the claim that the Poudre Defendants’ use of the

    Restrictions unlawfully deprived her of the right to

    nonprobationary portability, but that disputed issues of

    material fact preclude the entry of summary judgment to

    any party on the claim for a declaratory judgment that

    she is entitled to nonprobationary status.

•   We remand for further proceedings consistent with this

    opinion.

                           3
¶6    First, we discuss the history of the statute granting teachers

 the right to nonprobationary portability. Second, we summarize the

 factual and procedural background of the case. Third, we

 determine whether Stanczyk and the Association have standing to

 assert the claims they pleaded against the Poudre Defendants.

 Fourth, we explain the standard of review applicable to this case.

 Fifth, we consider the district court’s grant of summary judgment to

 the Poudre Defendants on the Association and Stanczyk’s claims for

 declaratory judgment. Sixth, we consider the Association and

 Stanczyk’s remaining claims.

     I.   The History of the Nonprobationary Portability Statute

     A.    Nonprobationary Status Replaced Tenure in Colorado

¶7    Before 1990, a teacher received tenure if he or she was

 continuously employed in the same school district for three

 academic years. § 22-63-112(1), C.R.S. 1989. Once tenured, a

 teacher could be dismissed only for certain, enumerated reasons

 relating to cause. § 22-63-116, C.R.S. 1989. Thus, with limited

 exceptions, a tenured teacher was “entitled to a position of

 employment as a teacher.” § 22-63-115, C.R.S. 1989; see Johnson

 v. Sch. Dist. No. 1, 2018 CO 17, ¶ 3, 413 P.3d 711, 713.


                                   4
¶8    In 1990, the Teacher Employment, Compensation, and

 Dismissal Act (TECDA) eliminated all substantive references to

 tenure from Colorado’s education statutes. Ch. 150, sec. 1,

 §§ 22-63-101 to -403, 1990 Colo. Sess. Laws 1117-28; see Johnson,

 ¶ 4, 413 P.3d at 713-14. “TECDA instead created a distinction

 between nonprobationary and probationary teachers, defining the

 latter as ‘a teacher who has not completed three full years of

 continuous employment with the employing school district and who

 has not been reemployed for the fourth year.’” Sch. Dist. No. 1 v.

 Masters, 2018 CO 18, ¶ 6, 413 P.3d 723, 726 (quoting

 § 22-63-103(7), C.R.S. 1990).

¶9    Nonprobationary teachers retained certain of the protections

 afforded to tenured teachers under prior law. See id. at ¶ 7, 413

 P.3d at 726. Sections of TECDA still in force today provide that

 nonprobationary teachers can be dismissed only for enumerated

 reasons. § 22-63-301, C.R.S. 2019; see § 22-63-302, C.R.S. 2019.

 Additionally, before termination of their employment,

 nonprobationary teachers are entitled to receive notice and an

 opportunity to be heard by a neutral hearing officer. § 22-63-302;

 see § 22-63-202(2)(c.5)(III)(B), C.R.S. 2019.


                                    5
       B.   SB 191 Tied Nonprobationary Status to Performance

¶ 10   In 2010, Senate Bill 10-191 (SB 191) changed the way

  Colorado teachers are evaluated and receive nonprobationary

  status. Ch. 241, sec. 10, § 22-63-103, 2010 Colo. Sess. Laws 1070.

  SB 191 rests on the belief that a “system to evaluate the

  effectiveness of licensed personnel is crucial to improving the

  quality of education in this state” and that “such a system [should]

  be applicable to all licensed personnel in the school districts and

  boards . . . throughout the state.” § 22-9-102(1)(a), C.R.S. 2019.

¶ 11   SB 191 created a uniform, statewide framework for evaluating

  teachers, provided for development of statewide criteria to measure

  teacher effectiveness, mandated annual teacher evaluations, and

  required that fifty percent of a teacher’s evaluation score be based

  on student academic growth. Ch. 241, sec. 5, § 22-9-105.5, 2010

  Colo. Sess. Laws 1056-61.

¶ 12   As part of this framework, the General Assembly linked

  nonprobationary status to teacher performance.

  § 22-9-102(1)(a)(V). To attain nonprobationary status, a teacher

  must demonstrate three years of effectiveness, measured by the




                                    6
  statewide standards established in SB 191.

  §§ 22-9-105.5(3)(d), -63-103(7), -63-203(1)(b), C.R.S. 2019.

         C.     SB 191 Established Nonprobationary Portability

¶ 13   SB 191 granted teachers who had attained nonprobationary

  status the right to transfer that status from one district to another.

  § 22-63-203.5, C.R.S. 2019. Section 22-63-203.5 provides that a

  nonprobationary teacher

              who is employed by a school district and is
              subsequently hired by a different school
              district may provide to the hiring school
              district evidence of his or her student
              academic growth data and performance
              evaluations for the prior two years for the
              purposes of retaining nonprobationary status.

  Id. (We refer to such evidence and evaluations as Required

  Documentation.) Importantly, the statute says that “[i]f, upon

  providing such data, the nonprobationary teacher can show two

  consecutive performance evaluations with effectiveness ratings in

  good standing, he or she shall be granted nonprobationary status in

  the hiring school district.” Id. (emphasis added). Before the

  General Assembly enacted section 22-63-203.5, school districts had

  the sole discretion whether to grant nonprobationary status to a

  nonprobationary teacher who relocated from another school district.


                                     7
   D.     School Districts Can Obtain Exemptions from Certain of the
                Statewide Mandates in the Education Statutes

¶ 14     School districts, the State Board of Education, and the

  General Assembly have different and distinct roles in overseeing the

  education of Colorado’s children. Under the Colorado Constitution,

  school districts have the authority to control “instruction in [their]

  public schools,” Colo. Const. art. IX, § 15, while the State Board of

  Education possesses general supervisory power over Colorado’s

  public schools, Colo. Const. art. IX, § 1(1). The General Assembly is

  charged with “provid[ing] for the establishment and maintenance of

  a thorough and uniform system of free public schools throughout

  the state” (the Thorough and Uniform Clause). Colo. Const. art. IX,

  § 2.

¶ 15     In keeping with these differing roles, school districts may seek

  an exemption from the State Board of Education from most, but not

  all, of the statewide mandates set forth in title 22 of the Colorado

  Revised Statutes. § 22-2-117, C.R.S. 2019. (The mandates for

  which a school district may not obtain an exemption are listed in

  subsections (1)(b) and (1.5) of section 22-2-117. Nonprobationary

  portability is not one of them.)



                                      8
¶ 16   To obtain an exemption from a statewide mandate, a school

  district must obtain stakeholder support and provide public notice,

  § 22-2-117(1)(d), (2), and must satisfy the State Board of Education

  that the exemption “would enhance educational opportunity and

  quality within the school district and that the costs to the school

  district of complying with the requirements for which the waiver is

  requested significantly limit educational opportunity within the

  school district.” § 22-2-117(1)(a).

                               II.     Background

                          A.         Underlying Facts

¶ 17   Stanczyk, a licensed teacher, worked in the Thompson School

  District from 1995 through the 2015-16 school year. She attained

  nonprobationary status in that district in the 1998-99 school year.

¶ 18   During her last year at the Thompson School District,

  Stanczyk applied for several positions with the Poudre School

  District (School District). Because the School District did not

  accept paper applications, Stanczyk applied for the positions

  though the School District’s online application system, known as

  AppliTrack. Before Stanczyk could submit her completed




                                          9
  application through AppliTrack, she was required to confirm her

  agreement with the following statement:

            Any offers of employment extended by [School
            District] to me are conditioned on signing a
            probationary teacher contract and not
            asserting the portability of nonprobationary
            status I have acquired in another school
            district, if any.

¶ 19   Following this language, Stanczyk had to click a box

  acknowledging “I agree” that “I have read, understand, and agree to

  all the terms above.” The AppliTrack form did not provide an “I

  disagree” option. Stanczyk clicked the “I agree” box and submitted

  her application. The School District’s website did not include an

  explanation of how an applicant could avoid clicking “I agree” or a

  statement of its policy on nonprobationary portability.

¶ 20   The School District offered Stanczyk a probationary teaching

  position. Before signing her employment contract for that position,

  Stanczyk visited the School District’s human resources office and

  asked whether the School District permitted nonprobationary

  portability. A person whose name and title do not appear in the

  record allegedly conferred with a coworker and responded to

  Stanczyk, “we don’t do that here.”



                                   10
¶ 21   Victoria Thompson, the School District’s Human Resources

  Director, however, asserted in an affidavit submitted in support of

  the Poudre Defendants’ motion for summary judgment that the

  School District “does not require applicants for teaching positions to

  waive nonprobationary portability.” (We refer to Victoria Thompson

  as “Ms. Thompson,” rather than as “Thompson,” to distinguish the

  references to her from the references to the Thompson School

  District.) Ms. Thompson said that the School District’s human

  resources office can “allow the teacher to submit the application

  without agreeing to the waiver provision.”

¶ 22   After Stanczyk visited the human resources office, she signed

  a contract with the School District for a probationary position. The

  contract said that Stanczyk would be “employed as a probationary

  teacher under C.R.S. § 22-63-203” and that she had “voluntarily

  waived [her] right under C.R.S. § 22-63-203.5 to assert the

  portability of [her] nonprobationary status.” Additionally, the

  contract specified that it was “voidable at the option of the [Poudre

  School District R-1] Board of Education” if Stanczyk asserted “the

  portability of [her] nonprobationary status acquired in another

  school district.”


                                    11
¶ 23   At the conclusion of the academic year, a supervisor told

  Stanczyk that her contract with the School District would not be

  renewed. A week later, Stanczyk informed Ms. Thompson by email

  that she wished to exercise her right to nonprobationary portability,

  specifically referencing section 22-63-203.5. Stanczyk attached to

  the email her evaluations from the Thompson School District for the

  2014-15 and 2015-16 school years, in which she had received

  ratings of “Highly Effective” and “Effective,” respectively. Ms.

  Thompson denied Stanczyk’s request to transfer her

  nonprobationary status to the School District.

¶ 24   Ms. Thompson testified during her deposition that Stanczyk’s

  request was “very incomplete.” Ms. Thompson did not

  contemporaneously tell Stanczyk, however, that the School District

  did not believe Stanczyk had submitted the Required

  Documentation. While Ms. Thompson also said that Stanczyk had

  waited too long to request portability, Ms. Thompson testified that

  she did not feel comfortable specifying the School District’s deadline

  to request nonprobationary portability.

¶ 25   Several days after Ms. Thompson denied Stanczyk’s request to

  exercise her right to nonprobationary portability, the Poudre School


                                    12
  District R-1 Board of Education confirmed that Stanczyk’s contract

  would not be renewed. Because the Poudre Defendants considered

  Stanczyk to be a probationary teacher, they did not follow the

  statutory procedure for terminating a nonprobationary teacher,

  which would have afforded her notice and an opportunity to be

  heard by a neutral hearing officer. § 22-63-302.

                          B.   Procedural History

¶ 26   When her contract was not renewed, Stanczyk and the

  Association, of which Stanczyk is a member, filed suit against the

  Poudre Defendants. Stanczyk and the Association pleaded six

  claims for relief seeking:

       (1)   a declaratory judgment that the Poudre Defendants must

             grant nonprobationary status to Stanczyk and similarly

             situated teachers who provide the Required

             Documentation (First Claim for Declaratory Judgment);

       (2)   a declaratory judgment that the Poudre Defendants’ use

             of the Restrictions violates Colorado law and is contrary

             to public policy (Second Claim for Declaratory

             Judgment);




                                    13
       (3)   mandamus relief (if other relief is not available) to compel

             the Poudre Defendants to grant nonprobationary status

             to Stanczyk and similarly situated teachers who provide

             the Required Documentation;

       (4)   a determination that section 22-63-203.5 creates a

             statutory contract between the School District and its

             teachers, and that the School District breached such

             contract with Stanczyk and similarly situated teachers;

       (5)   a determination that the Poudre Defendants deprived

             Stanczyk and similarly situated teachers of a property

             interest in continued employment without due process of

             law, in violation of the Colorado Constitution; and

       (6)   a determination that the Poudre Defendants’ use of the

             Restrictions violates the guarantee of a “thorough and

             uniform system of free public schools” set forth in the

             Thorough and Uniform Clause and is therefore

             preempted by section 22-63-203.5.

¶ 27   The parties cross-moved for summary judgment.




                                    14
¶ 28   As relevant to this appeal, the Poudre Defendants contend

  they were entitled to summary judgment because:

       (1)   Stanczyk and the Association lack standing;

       (2)   Stanczyk waived her right to nonprobationary portability

             or, in the alternative, Stanczyk’s request for

             nonprobationary portability was untimely and she did

             not provide the Poudre Defendants with the Required

             Documentation;

       (3)   the Poudre Defendants cannot be compelled to make the

             discretionary decision whether Stanczyk submitted the

             Required Documentation;

       (4)   because section 22-63-203.5 creates a statutory right,

             and not a constitutional right, the Poudre Defendants

             could not have denied Stanczyk due process rights; and

       (5)   section 22-63-203.5 does not create a statutory contract

             or a property interest.

¶ 29   Stanczyk and the Association argued they were entitled to

  summary judgment on their claims for declaratory relief because

  there is no factual dispute that the Poudre Defendants unlawfully

  deprive teachers of their right to nonprobationary portability, in


                                       15
  violation of section 22-63-203.5. They also contended that the word

  “shall” in section 22-63-203.5 creates a statutory contract between

  the School District and the nonprobationary teachers it hires.

  Similarly, they argued that nonprobationary status is a property

  right and that the Poudre Defendants unconstitutionally deprived

  Stanczyk and similarly situated teachers of such property right

  without due process of law. Finally, they asserted that if no other

  relief is granted, they are entitled to mandamus relief because the

  Poudre Defendants had a duty under section 22-63-203.5 to

  provide nonprobationary status to Stanczyk and similarly situated

  teachers.

¶ 30   The district court granted summary judgment to the Poudre

  Defendants. The court determined:

       (1)    Stanczyk had standing to bring all six of her claims and

              the Association had associational standing to join in

              Stanczyk’s two declaratory judgment claims and her

              claim that the Poudre Defendants’ use of the Restrictions

              violates the Thorough and Uniform Clause;




                                    16
(2)   school districts may require teachers to relinquish their

      right to nonprobationary portability as a condition of

      employment;

(3)   Stanczyk waived her right to nonprobationary portability

      by signing the School District’s form employment

      agreement;

(4)   because Stanczyk waived that right, the Poudre

      Defendants were not required to grant her

      nonprobationary status;

(5)   the Poudre Defendants’ use of the Restrictions did not

      violate section 22-63-203.5 because local school boards

      have general authority over teacher employment

      decisions;

(6)   Stanczyk could not succeed on her claims for breach of

      contract and violation of her due process rights because

      section 22-63-203.5 “does not create a contract with

      teachers by operation of law and teachers do not have a

      property interest in nonprobationary portability”; and

(7)   Stanczyk and the Association “did not provide any

      evidence that requiring teachers to waive their right to


                             17
               request nonprobationary portability has any effect” on

               whether the state’s public school system is “thorough

               and uniform,” and therefore they could not succeed on

               their claim arising under the Thorough and Uniform

               Clause.

¶ 31     On appeal, Stanczyk and the Association again argue that the

  Poudre Defendants’ use of the Restrictions violates the statewide

  mandate codified in section 22-63-203.5.

¶ 32     The Poudre Defendants deny that their use of the Restrictions

  is unlawful and assert that the district court correctly awarded

  them summary judgment on Stanczyk’s claims because she waived

  the right to nonprobationary portability. They also argue that

  Stanczyk and the Association lack standing.

       III.   The District Court Correctly Decided the Standing Issue

         Before we address the district court’s ruling on the merits, we

  must consider the Poudre Defendants’ argument that Stanczyk and

  the Association lack standing to bring their claims. Barber v. Ritter,

  196 P.3d 238, 245 (Colo. 2008) (“Standing is a threshold issue that

  must be satisfied in order for a court to decide a case on the

  merits.”). “In determining whether a plaintiff has alleged an injury


                                     18
  sufficient to confer standing, an appellate court considers the

  allegations in the complaint, as well as testimony and other

  documentary evidence in the record.” Rechberger v. Boulder Cty.

  Bd. of Cty. Comm’rs, 2019 COA 52, ¶ 8, 454 P.3d 355, 357.

  “Whether a plaintiff has standing to sue is a question of law that we

  review de novo.” Barber, 196 P.3d at 245.

¶ 33   Because Stanczyk and the Association jointly asserted all

  claims pleaded in their complaint, we consider whether (1) Stanczyk

  has standing as an individual and (2) the Association has

  associational standing to assert the claims on behalf of its

  members.

       A.   Stanczyk Has Standing to Assert All Six of Her Claims

¶ 34   To establish standing, an individual “must satisfy a two-part

  test requiring (1) that the plaintiff ‘suffered injury in fact,’ and (2)

  that the injury was to a ‘legally protected interest as contemplated

  by statutory or constitutional provisions.’” Barber, 196 P.3d at 245

  (quoting Wimberly v. Ettenberg, 194 Colo. 163, 168, 570 P.2d 535,

  538 (1977)).

¶ 35   Under the first prong of the test, “[t]he injury may be tangible,

  such as physical damage or economic harm; however, it may also


                                      19
  be intangible, such as aesthetic issues or the deprivation of civil

  liberties. Deprivations of many legally created rights, although

  themselves intangible, are nevertheless injuries-in-fact.” Ainscough

  v. Owens, 90 P.3d 851, 856 (Colo. 2004) (citation omitted).

  Standing, however, is not established by an injury that is overly

  “indirect and incidental” to the defendant’s action. Hickenlooper v.

  Freedom from Religion Found., Inc., 2014 CO 77, ¶ 9, 338 P.3d

  1002, 1007 (quoting Ainscough, 90 P.3d at 856).

¶ 36   As the district court correctly pointed out, it is undisputed

  that the Poudre Defendants “denied Stanczyk’s request for

  nonprobationary portability, and, therefore, allegedly caused her

  injury.” The Poudre Defendants argue the opposite: that Stanczyk

  cannot establish the first prong because “she caused her own injury

  by affirmatively waiving her right to transfer her nonprobationary

  status and subsequently waiting eight months to request

  portability.” We disagree with the Poudre Defendants.

¶ 37   The Poudre Defendants rely on People in Interest of J.C.S., 169

  P.3d 240, 245 (Colo. App. 2007), for the proposition that the injury-

  in-fact requirement cannot be satisfied if the plaintiff caused the

  injury to herself. In J.C.S., however, the division acknowledged that


                                    20
  Colorado has never adopted a “self-inflicted injury limitation on

  standing.” Id. at 246. Rather, whether the plaintiff caused her own

  injury is a consideration in determining whether the plaintiff can

  prove causation. Id. Under J.C.S., the Poudre Defendants cannot

  establish that Stanczyk lacks standing even if her injury was self-

  inflicted. Thus, we agree with the district court that Stanczyk has

  properly alleged an injury in fact.

¶ 38   Although the district court also addressed the Poudre

  Defendants’ argument under the second prong of the standing

  analysis — whether Stanczyk suffered an injury to a legally

  protected interest — the Poudre Defendants do not pursue this

  argument on appeal. We therefore deem their “legally protected

  interest” argument abandoned. Armed Forces Bank, N.A. v. Hicks,

  2014 COA 74, ¶ 38, 365 P.3d 378, 386 (“[A]rguments raised in the

  trial court and not pursued on appeal are deemed abandoned[.]”

  (citing People v. Dash, 104 P.3d 286, 293 (Colo. App. 2004))).

¶ 39   Thus, we affirm the district court’s determination that

  Stanczyk had standing.




                                    21
       B.    The Association Has Associational Standing to Join in
            Stanczyk’s Claims for Declaratory Judgment and Claim
               Arising Under the Thorough and Uniform Clause

¶ 40   We agree with the district court that the Association has

  associational standing to join in three of Stanczyk’s claims — (1) the

  First Claim for Declaratory Judgment (seeking a determination that

  the Poudre Defendants must grant nonprobationary status

  whenever a qualified teacher submits the Required Documentation);

  (2) the Second Claim for Declaratory Judgment (seeking a

  determination that the Poudre Defendants’ use of the Restrictions is

  unlawful); and (3) the claim that the Poudre Defendants’ use of the

  Restrictions violates the Thorough and Uniform Clause. Because

  the Association does not challenge the district court’s ruling that it

  lacks standing to assert the remaining claims, we consider only the

  Poudre Defendants’ challenge to the Association’s associational

  standing to join in the three claims listed above. See id. (explaining

  we do not consider arguments that have not been raised on appeal).

             [A]n organization has associational standing
             when: (1) its members would otherwise have
             standing to sue in their own right; (2) the
             interests it seeks to protect are germane to the
             organization’s purpose; and (3) neither the
             claim asserted, nor the relief requested,



                                    22
             requires the participation of individual
             members of the lawsuit.

  Colo. Union of Taxpayers Found. v. City of Aspen, 2018 CO 36, ¶ 10,

  418 P.3d 506, 510.

        1.      The First Claim for Declaratory Judgment as to the
                                    Association

¶ 41   The Association seeks a declaratory judgment that the Poudre

  Defendants must grant qualifying teachers nonprobationary status

  if the teachers provide the Required Documentation. Under the

  first prong of the standing analysis, an organization has

  associational standing when its members have standing to sue in

  their own right. Id. Because Stanczyk has standing to bring this

  claim, so does the Association.

¶ 42   Under the second prong, we consider whether a declaratory

  judgment addressing teachers’ exercise of their right to

  nonprobationary portability would be germane to the Association’s

  purpose. See id. We conclude it would be germane. See Kelley v.

  Shelby Cty. Bd. of Educ., 198 F. Supp. 3d 842, 850 (W.D. Tenn.

  2016) (Protecting teachers “from dismissal in violation of [state] law

  [is] an interest germane to [a teachers’ union’s] organizational

  purpose.”).


                                     23
¶ 43   The Poudre Defendants further argue that the Association

  lacks standing to assert the Second Claim because a teacher must

  exercise the right to nonprobationary portability before the school

  district hires the teacher and, thus, before the teacher is eligible to

  join a teachers’ union. But, as we explain in Part V.A.2 below,

  section 22-63-203.5 grants the right to nonprobationary portability

  to nonprobationary teachers whom a school district has already

  hired and who, therefore, are eligible to join the teachers’ union.

  For these reasons, the Association meets the second prong of the

  standing test.

¶ 44   Finally, under the third prong of the standing test, we

  conclude that, from the Association’s perspective, the First Claim

  for Declaratory Judgment does not require the participation of

  individual teachers because a declaratory judgment that the Poudre

  Defendants must comply with section 22-63-203.5 would impact all

  Association members in Stanczyk’s position, and not Stanczyk

  alone.




                                     24
            2.     The Second Claim for Declaratory Judgment as to the
                                       Association

¶ 45        The Association seeks a declaratory judgment that the Poudre

  Defendants’ use of the Restrictions violates Colorado law. For the

  reasons explained above, the Association meets all three prongs to

  establish standing to assert this claim: Stanczyk has standing and

  is a member of the Association; determining whether the Poudre

  Defendants’ use of the Restrictions violates Colorado law is germane

  to the Association’s purpose; and such a decision would apply to all

  Association members similarly situated to Stanczyk.

       3.        The Association’s Third Claim that the Poudre Defendants
                        Violated the Thorough and Uniform Clause

¶ 46        The Association seeks a ruling that the Poudre Defendants

  violated the Thorough and Uniform Clause by requiring teachers to

  relinquish their right to nonprobationary portability as a condition

  of employment.

¶ 47        For the same reasons why the Association has standing to

  assert its claims for declaratory judgment, it also has associational

  standing to join Stanczyk in asserting this constitutional claim.

¶ 48        Thus, we affirm the district court’s ruling on standing.




                                         25
       IV.   We Review De Novo the District Court’s Decision to Grant
                 Summary Judgment to the Poudre Defendants

¶ 49     Summary judgment “is a drastic remedy, to be granted only

  when there is a clear showing that the applicable standards have

  been met.” Cary v. United of Omaha Life Ins. Co., 68 P.3d 462, 466

  (Colo. 2003). A district court may grant summary judgment only if

  the “pleadings, depositions, answers to interrogatories, and

  admissions on file, together with [supporting and opposing]

  affidavits, if any, show that there is no genuine issue as to any

  material fact and that the moving party is entitled to a judgment as

  a matter of law.” C.R.C.P. 56(c).

¶ 50     The party moving for summary judgment bears the “burden of

  establishing the lack of a triable factual issue, and all doubts as to

  the existence of such an issue must be resolved against the moving

  party.” Churchey v. Adolph Coors Co., 759 P.2d 1336, 1340 (Colo.

  1988). If the moving party can establish the absence of record

  evidence to support the nonparty’s case, the burden shifts to the

  nonmoving party to show a triable issue of fact. Cont’l Air Lines,

  Inc. v. Keenan, 731 P.2d 708, 713 (Colo. 1987).




                                      26
¶ 51     When all parties move for summary judgment, the trial court

  must “consider each motion separately, review the record, and

  determine whether a genuine dispute as to any fact material to that

  motion exists.” Churchey, 759 P.2d at 1340. “One party’s assertion

  of undisputed facts cannot ‘be applied in connection with’ the other

  party’s cross-motion for summary judgment.” Jones v. Samora,

  2016 COA 191, ¶ 44, 395 P.3d 1165, 1174 (quoting Churchey, 759

  P.2d at 1340). “If there are genuine disputes regarding facts

  material to both motions, the court must deny both motions.”

  Churchey, 759 P.2d at 1340.

¶ 52     “In reviewing a summary judgment order, an appellate court

  applies the same standard as the district court.” City of Fort Collins

  v. Colo. Oil, 2016 CO 28, ¶ 9, 369 P.3d 586, 590. Thus, we review a

  trial court’s decision to grant a motion for summary judgment de

  novo. S. Cross Ranches, LLC v. JBC Agric. Mgmt., LLC, 2019 COA

  58, ¶ 11, 442 P.3d 1012, 1015. Our task on review “is to determine

  whether a genuine issue of material fact existed and whether the

  district court correctly applied the law.” Colo. Oil, ¶ 9, 369 P.3d at

  590.




                                    27
   V.    The District Court Erred in Awarding Summary Judgment to
          the Poudre Defendants on Stanczyk and the Association’s
                        Declaratory Judgment Claims

¶ 53    Stanczyk and the Association’s claims for declaratory

  judgment rest on their contention that the Poudre Defendants’ use

  of the Restrictions violates section 22-63-203.5. But the district

  court did not reach the merits of this argument. Rather, it awarded

  summary judgment to the Poudre Defendants on the declaratory

  judgment claims based upon its determination that the right to

  nonprobationary portability is waivable and that Stanczyk waived it.

  The district court misread section 22-63-203.5, however, and did

  not need to reach the issue of whether the right to nonprobationary

  portability can be waived.

¶ 54    We resolve the case by considering the more fundamental

  question of whether the Poudre Defendants’ use of the Restrictions,

  as reflected in the parties’ summary judgment motions and briefs,

  violates section 22-63-203.5.

¶ 55    To determine whether the Poudre Defendants’ use of the

  Restrictions is lawful, we first review the nonprobationary

  portability statute. Second and third, we examine the Poudre

  Defendants’ use of the Restrictions and, in doing so, determine


                                   28
  whether the Poudre Defendants violated section 22-63-203.5.

  Fourth, we discuss the exclusive means by which the Poudre

  Defendants could avoid the mandate of section 22-63-203.5. Fifth,

  we consider the Poudre Defendants’ local control argument. We

  then apply these analyses in determining whether the district court

  erred in granting summary judgment to the Poudre Defendants on

  Stanczyk and the Association’s declaratory judgment claims.

             A.    The Nonprobationary Portability Statute

                  1.   Rules of Statutory Interpretation

¶ 56   The meaning of section 22-63-203.5 is a question of law that

  we review de novo. Wolf Ranch, LLC v. City of Colorado Springs, 220

  P.3d 559, 563 (Colo. 2009).

¶ 57   When we interpret a statute, “[w]e begin with the statutory

  language itself and give the text its ordinary and commonly

  accepted meaning.” Rooftop Restoration, Inc. v. Am. Family Mut. Ins.

  Co., 2018 CO 44, ¶ 12, 418 P.3d 1173, 1176. “The language at

  issue must be read in the context of the statute as a whole and the

  context of the entire statutory scheme. Thus, our interpretation

  should give consistent, harmonious, and sensible effect to all parts

  of a statute.” Jefferson Cty. Bd. of Equalization v. Gerganoff, 241


                                    29
  P.3d 932, 935 (Colo. 2010) (citations omitted). “A ‘cardinal principle

  of statutory construction’ is that no clause, sentence, or word is

  ‘superfluous, void, or insignificant.’” Falcon Broadband, Inc. v.

  Banning Lewis Ranch Metro. Dist. No. 1, 2018 COA 92, ¶ 31, ___

  P.3d ___, ___ (quoting TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001)).

       2.     Section 22-63-203.5 Requires School Districts to Provide
            Nonprobationary Status to Qualified Teachers Who Submit the
                             Required Documentation

¶ 58        The plain language of section 22-63-203.5 grants qualified

  teachers the sole discretion to exercise the right of nonprobationary

  portability: “[U]pon providing [the Required Documentation], the

  nonprobationary teacher . . . shall be granted nonprobationary

  status in the hiring school district.” (Emphasis added.) Thus, if a

  qualified teacher provides a school district with the Required

  Documentation, the hiring school district must provide the teacher

  with nonprobationary status. See Colo. Real Estate Comm’n v. Vizzi,

  2019 COA 33, ¶ 27, ___ P.3d ___, ____ (explaining that, absent a

  clear indication of contrary legislative intent, the word “shall” in a

  statute means that the General Assembly intended the listed action

  to be mandatory).




                                       30
¶ 59   This statutory right belongs to any qualifying teacher who (1)

  was “employed by a school district”; (2) is “subsequently hired by a

  different school district” (called the “hiring school district”); and (3)

  submits the Required Documentation. § 22-63-203.5.

          B.    The Poudre Defendants’ Use of the Restrictions

¶ 60   The parties’ summary judgment motions and briefs reflect no

  dispute that the Poudre Defendants imposed the Restrictions on

  Stanczyk and other similarly situated teachers. First, the School

  District’s online AppliTrack application form required teachers to

  acknowledge their waiver of the right to nonprobationary portability

  by clicking the “I accept” button before they could submit the

  application. In her deposition testimony and affidavit, Ms.

  Thompson claimed that a teacher could ask the School District’s

  human resources department to override AppliTrack and “allow the

  teacher to submit the application without agreeing to the waiver

  provision.”

¶ 61   Yet the record shows that neither the AppliTrack form nor the

  School District’s website indicated that a teacher could apply for a

  job without waiving the right to nonprobationary portability or how

  the teacher could do so. Thus, the record shows only that a teacher


                                      31
  must agree to waive nonprobationary portability to submit the

  online application. The information the School District presented to

  the public created the impression, intentionally or otherwise, that

  the School District did not permit teachers to exercise the right to

  nonprobationary portability.

¶ 62   Second, the School District used a form employment

  agreement stating that, by signing, the teacher “voluntarily waived

  [his or her] right” to assert nonprobationary portability and that the

  contract is “voidable at the option of the [School District]” if the

  teacher asserted the right to nonprobationary portability.

¶ 63   Although the parties disagree whether a teacher can

  circumvent the Restrictions, there is no dispute that the Poudre

  Defendants used the Restrictions to require teachers to relinquish

  the right to nonprobationary portability as a condition of

  employment. Even if teachers could somehow apply for

  employment with the School District without agreeing to the waiver

  language in the AppliTrack form, the Poudre Defendants would still

  retain, through the form employment agreement, the power to hire

  only those teachers who surrendered their right to nonprobationary

  portability.


                                     32
       C.   The Poudre Defendants’ Use of the Restrictions Violates
                            Section 22-63-203.5

¶ 64    A school district may not unreasonably restrict a teacher’s

  exercise of the right to nonprobationary portability under section

  22-63-203.5. The Poudre Defendants’ use of the Restrictions is

  unreasonable because it reverts the portability decision from the

  teacher back to the school district, thereby writing section

  22-63-203.5 out of the statute book.

¶ 65    Before the General Assembly adopted section 22-63-203.5, if

  an experienced teacher who had achieved nonprobationary status

  wanted to accept a position with a different school district, the

  teacher had no choice but to relinquish his or her nonprobationary

  status (and the associated protections) — and start anew as a

  probationary teacher — unless the hiring school district offered the

  teacher a nonprobationary position. The decision whether the

  teacher would receive nonprobationary status in the hiring school

  district exclusively belonged to the hiring school district.

¶ 66    Section 22-63-203.5 changed the law by giving the teacher the

  sole power to exercise the right of portability. But the statute has

  significance only if teachers retain this power.



                                     33
¶ 67   The Poudre Defendants’ use of the Restrictions enables them

  to choose which of the School District’s teachers, if any, may enjoy

  the benefits of 22-63-203.5 or even deny employment to all teachers

  who try to exercise their right to nonprobationary portability. The

  AppliTrack form, at best, discourages teachers from exercising their

  right to nonprobationary portability. The School District’s form

  employment contract, however, empowers the School District to

  render a teacher’s employment contract void if the teacher attempts

  to benefit from his or her statutory right to nonprobationary

  portability.

¶ 68   For these reasons, we conclude that the Poudre Defendants’

  use of the Restrictions violates section 22-63-203.5. Our holding is

  narrow. Because we conclude the Poudre Defendants’ use of the

  Restrictions is unlawful, we need not address the circumstances, if

  any, under which a teacher — undeterred by the Restrictions — can

  voluntarily waive the right to nonprobationary portability. See

  Ritter v. Jones, 207 P.3d 954, 961 (Colo. App. 2009) (“[W]aiver of a

  statutory protection must be voluntary.”). Nor need we consider

  whether a school district may place reasonable restrictions, such as




                                    34
  a deadline to request nonprobationary status, on a teacher’s

  exercise of the right to nonprobationary portability.

       D.   A School District May Obtain an Exemption from Section
            22-63-203.5’s Mandate from the State Board of Education

¶ 69    The Poudre Defendants are not left without a remedy if they

  wish to deny the right to nonprobationary portability to their

  teachers. As discussed in Part I.D above, section 22-2-117

  authorizes the State Board of Education to balance the school

  district’s right to local control against a statewide mandate. If the

  Poudre Defendants can satisfy the statutory criteria for obtaining

  an exemption from the mandate set forth in 22-63-203.5, the State

  Board of Education may grant such an exemption.

¶ 70    The enactment of the statute authorizing the State Board of

  Education to exempt school districts from statewide statutory

  mandates means that school districts may not deny teachers a right

  guaranteed by statute without obtaining the State Board of

  Education’s authorization. See People in Interest of R.J., 2019 COA

  109, ¶ 8, 451 P.3d 1232, 1235 (explaining that the inclusion of

  certain terms in a rule or statute implies the exclusion of others).

  Thus, an exemption from the State Board of Education is the



                                    35
  exclusive means by which the Poudre Defendants may avoid

  compliance with section 22-63-203.5. (The parties’ summary

  judgment motions and briefs do not indicate whether the Poudre

  Defendants sought the State Board of Education’s authorization to

  circumvent section 22-63-203.5’s mandate.)

  E.    The Poudre Defendants’ Prerogative of Local Control Does Not
         Include the Authority to Disregard the Statewide Statutory
                  Mandate of Nonprobationary Portability

¶ 71   The Poudre Defendants’ local control argument is

  unconvincing. The Poudre Defendants argue that “holding

  portability to be inalienable would fully usurp the [School] District’s

  power to offer employment on the terms and conditions it deems

  appropriate” and, therefore, would violate the Poudre Defendants’

  prerogative of local control.

¶ 72   Local control does not permit a school district to ignore a

  statewide statutory mandate without obtaining an exemption from

  the State Board of Education. Taken to its logical extreme, the

  Poudre Defendants’ argument would allow every school district in

  Colorado to ignore section 22-63-203.5 — or any other statewide

  statutory mandate. To paraphrase Justice Cardozo, this would




                                    36
  result in local control run riot. See A.L.A. Schechter Poultry Corp. v.

  United States, 295 U.S. 495, 553 (1935) (Cardozo, J., concurring).

       F.    The Association, But Not Stanczyk, Is Entitled to Summary
               Judgment on the First Claim for Declaratory Judgment

¶ 73        Stanczyk and the Association seek a declaratory judgment

  that the Poudre Defendants must grant Stanczyk and similarly

  situated teachers nonprobationary status if they provide the Poudre

  Defendants with the Required Documentation. Given our

  determination that the Poudre Defendants’ use of the Restrictions

  violates section 22-63-203.5, we hold that the Association is

  entitled to summary judgment on the First Claim for Declaratory

  Judgment. The nonprobationary portability statute makes clear

  that, if a qualified teacher complies with the requirements for

  nonprobationary portability, the Poudre Defendants must grant the

  teacher that status. It logically follows that the Poudre Defendants

  cannot place unreasonable roadblocks in the path of a teacher’s

  exercise of the right to nonprobationary portability.

¶ 74        Stanczyk is not entitled to summary judgment on the First

  Claim for Declaratory Judgment, however, because the record

  reflects disputed issues of material fact as to whether she provided



                                       37
  the School District with the Required Documentation. See Dep’t of

  Nat. Res. v. 5 Star Feedlot Inc., 2019 COA 162M, ¶ 37, ___ P.3d ___,

  ___ (holding that the Court of Appeals may direct entry of summary

  judgment in favor of the moving party where the non-moving party

  did not come forward with evidence demonstrating a genuine issue

  of material fact).

¶ 75   Section 22-63-203.5 states that a nonprobationary teacher

  “may provide to the hiring school district evidence of his or her

  student academic growth data and performance evaluations for the

  prior two years for the purposes of retaining nonprobationary

  status.” § 22-63-203.5 (emphasis added). Stanczyk alleges that

  she provided the School District with the required student academic

  growth data and performance evaluations. The Poudre Defendants,

  however, contend that Stanczyk “failed to provide evidence of

  student academic growth data from her prior two years.” Stanczyk

  counters that her evaluations included “student academic growth

  data” because these scores accounted for “50% of [her] overall

  evaluation score as required by [statute].”

¶ 76   This factual dispute precludes resolution of the First Claim for

  Declaratory Judgment on summary judgment as to Stanczyk.


                                    38
¶ 77    In sum, we reverse the district court’s award of summary

  judgment to the Poudre Defendants on Stanczyk and the

  Association’s First Claim for Declaratory Judgment. We hold that

  the Association is entitled to summary judgment on the First Claim

  for Declaratory Judgment and that disputed issues of material fact

  preclude the entry of summary judgment in favor of any party on

  the First Claim for Declaratory Judgment as to Stanczyk.

       G.     Stanczyk and the Association Are Entitled to Summary
            Judgment on Their Second Claim for Declaratory Judgment

¶ 78    Stanczyk and the Association seek a declaratory judgment

  that the Poudre Defendants’ use of the Restrictions is unlawful.

  Based on our determination that the Poudre Defendants’ use of the

  Restrictions violates section 22-63-203.5, we hold that the district

  court erred in granting summary judgment to the Poudre

  Defendants on the Second Claim for Declaratory Judgment, and

  that Stanczyk and the Association are entitled to summary

  judgment on this claim.




                                    39
  VI.   We Affirm the District Court’s Award of Summary Judgment to
          the Poudre Defendants on Stanczyk and the Association’s
                               Remaining Claims

                          A.    Mandamus Relief

¶ 79    A party may obtain mandamus relief only if other relief is

  unavailable. See Gandy v. Williams, 2019 COA 118, ¶ 24, ___ P.3d

  ___, ___. Because we hold that Stanczyk is entitled to summary

  judgment on the Second Claim for Declaratory Judgment, she may

  not obtain mandamus relief. Thus, while our reasoning differs from

  that of the district court, we affirm the district court’s holding that

  the Poudre Defendants are entitled to summary judgment on

  Stanczyk’s mandamus claim. See Steamboat Springs Rental &

  Leasing, Inc. v. City & Cty. of Denver, 15 P.3d 785, 786 (Colo. App.

  2000) (“An appellate court may affirm a correct judgment based on

  reasoning different from that relied on by the trial court.”).

                    B.   Breach of Statutory Contract

¶ 80    Stanczyk asserts that, by operation of law, section

  22-63-203.5 creates a contract between her and the School District,

  and that the School District breached such contract. We disagree.

¶ 81    In Masters, the Colorado Supreme Court analyzed when

  provisions of the education statutes create a statutory contract


                                     40
  between teachers and their school districts. Masters, ¶ 22, 413

  P.3d at 729. The court explained that, in prior education statutes,

  the General Assembly had indicated its intention to grant teachers

  statutory contract rights. Id. In TECDA, however, the General

  Assembly removed

            key language from TECDA’s predecessor
            statute . . . . Whereas [the Teacher
            Employment, Dismissal, and Tenure Act of
            1967 (TEDTA)] made pervasive use of the term
            “tenure,” TECDA omits it entirely. And
            whereas TEDTA provided that under certain
            circumstances a teacher is “entitled to a
            position of employment as a teacher,” TECDA
            uses no such entitlement language.

  Id. at ¶¶ 20-21, 413 P.3d at 729 (citations omitted). The court,

  therefore, concluded that “TECDA did not create a contractual

  relationship” between teachers and their school districts. Id. at

  ¶ 22, 413 P.3d at 729. Because section 22-63-203.5 appears in the

  same title and article of the Colorado statutes as TECDA, we

  conclude that the nonprobationary portability statute also does not

  create a statutory contract.

                            C.   Due Process

¶ 82   Stanczyk contends that the Poudre Defendants violated her

  due process rights by depriving her of a property right without


                                   41
  proper notice and an opportunity to be heard. “The United States

  Constitution prohibits states from depriving any person of property

  without due process of law.” Johnson, ¶ 25, 413 P.3d at 718 (citing

  U.S. Const. amend. XIV). Therefore, if, as Stanczyk contends,

  Colorado’s nonprobationary teachers have a property interest in

  continued employment, the General Assembly could not deprive

  them of that interest without due process.

¶ 83   The Colorado Supreme Court, however, has explained that

  “because TECDA eliminated the word ‘tenure’ and other entitlement

  and durational language, a nonprobationary teacher has no vested

  property interest in salary and benefits.” Id. at ¶ 24, 413 P.3d at

  717-18.

¶ 84   Stanczyk attempts to distinguish the court’s holding in

  Johnson by arguing that the right to nonprobationary portability is

  a different type of property right from “salary and benefits,” and

  that the word “shall” in section 22-63-203.5 suggests the type of

  durational language used in the earlier tenure statutes. We

  disagree.

¶ 85   The use of “shall” alone did not create an entitlement in those

  statutes; rather, the word established the property right only when


                                    42
  used in context. The Johnson court explained that “TEDTA

  guaranteed that a tenured teacher ‘shall be entitled to a position of

  employment as a teacher.’” Id. (quoting § 22-63-115, C.R.S. 1988).

  The court concluded that the removal of this language from the

  education statutes demonstrated the General Assembly’s intent to

  eliminate that expectancy. Id. Thus, we conclude that Stanczyk’s

  due process claim fails as a matter of law.

          D.    Violation of the Thorough and Uniform Clause

¶ 86   Stanczyk and the Association claimed that the Poudre

  Defendants’ refusal to allow teachers to exercise the right of

  nonprobationary portability violates the Thorough and Uniform

  Clause. As the district court noted, however, they did not provide

  any support for this position in their motion for summary

  judgment. For this reason, the district court granted summary

  judgment in favor of the Poudre Defendants on this claim. We

  agree and affirm the district court’s decision on Stanczyk and the

  Association’s claim arising under the Thorough and Uniform

  Clause. See Armed Forces Bank, N.A., ¶ 38, 365 P.3d at 386.




                                    43
                     VII. Conclusion

(1)   We affirm the district court’s determination that Stanczyk

      has standing to assert all six of her claims and the

      Association has standing to join in Stanczyk’s declaratory

      judgment claims and claim arising under the Thorough

      and Uniform Clause.

(2)   We affirm the district’s court award of summary

      judgment in favor of the Poudre Defendants on

      Stanczyk’s claims for breach of statutory contract, due

      process, and mandamus relief.

(3)   We affirm the district’s court award of summary

      judgment in favor of the Poudre Defendants on Stanczyk

      and the Association’s claim arising under the Thorough

      and Uniform Clause.

(4)   We reverse the district court’s award of summary

      judgment in favor of the Poudre Defendants on Stanczyk

      and the Association’s claims for declaratory judgment.

(5)   We conclude that disputed issues of material fact

      preclude the award of summary judgment to any party




                             44
      on the First Claim for Declaratory Judgment as to

      Stanczyk.

(6)   We remand for further proceedings consistent with this

      opinion, including (a) entry of summary judgment in

      favor of the Association on the First and Second Claims

      for Declaratory Judgments, (b) entry of summary

      judgment in favor of Stanczyk on the Second Claim for

      Declaratory Judgment, and (c) a trial on the merits on

      the First Claim for Declaratory Judgment as to Stanczyk.

JUDGE WEBB and JUDGE DUNN concur.




                            45
