Kerr v. Hickenlooper

259 F.Supp.3d 1178

Andy KERR, et al., Plaintiffs,

v.John HICKENLOOPER, Governor of Colorado in his official capacity, Defendant.

Case No. 11–cv–01350–RM–NYW

United States District Court, D. Colorado.

Signed May 4, 2017

Carrie Elizabeth Johnson, Cole Jacob Woodward, Michael F. Feeley, Sarah May Mercer Clark, Brownstein Hyatt Farber Schreck, LLP, David Evans Skaggs, Lino S. Lipinsky de Orlov, Dentons US LLP, John Anthony Herrick, John A. Herrick, Attorney at Law, Michael Lee Bender, Perkins Coie LLP, Denver, CO, Emily Droll Scott, ACT, Inc., Clive, IA, Geoffrey M. Williamson, Vranesh & Raisch, LLP, Boulder, CO, Herbert Lawrence Fenster, Covington & Burling, LLP, Washington, DC, for Plaintiffs.

Matthew David Grove, Bernard A. Buescher, Frederick Richard Yarger, Glenn E. Roper, Jonathan Patrick Fero, Kathleen L. Spalding, Megan Paris Rundlet, Stephanie Lindquist Scoville, William V. Allen, Colorado Attorney General's Office, Daniel D. Domenico, Kittredge LLC, Denver, CO, for Defendant.

OPINION AND ORDER

RAYMOND P. MOORE, United States District Judge

On June 3, 2016, the Tenth Circuit Court of Appeals vacated this Court's Order finding certain legislator-plaintiffs to have standing, concluded that the legislator-plaintiffs did not have standing, and remanded for this Court to determine whether any non-legislator plaintiffs have standing. (ECF No. 123.)

On December 6, 2016, plaintiffs filed a Fourth Amended Complaint ("FAC") against John Hickenlooper in his official capacity as the Governor of Colorado ("defendant"), seeking declaratory and injunctive relief with respect to the Taxpayer's Bill of Rights ("TABOR"), an amendment to the Colorado Constitution passed by voter initiative in 1992. (ECF No. 151.) Plaintiffs allege that TABOR violates: Article IV, Section 4 of the U.S. Constitution ; the Enabling Act of 1875 ("the Enabling Act"), 18 Stat. 474; Article IV, Section 2 of the U.S. Constitution; and Article X, Section 2, and Article V, Sections 31 and 32 of the Colorado Constitution. (Id. )

On December 16, 2016, defendant filed a motion to dismiss the FAC ("the motion to dismiss"), pursuant to Fed.R.Civ.P. 12(b)(1) (" Rule 12(b)(1)"). (ECF No. 156.) Plaintiffs have responded in opposition to the motion to dismiss (ECF No. 160), and defendant has filed a reply (ECF No. 163). Subsequently, plaintiffs filed a motion requesting oral argument on the motion to dismiss (ECF No. 167), to which defendant has responded (ECF No. 169).

I. Legal Standards

Motions to dismiss for lack of subject matter jurisdiction take two principal forms: (1) a facial attack, or (2) a factual attack on the allegations in the complaint. Holt v. United States , 46 F.3d 1000, 1002 (10th Cir. 1995). Here, defendant facially attacks the sufficiency of the allegations in the FAC. (See ECF No. 156 at 6–7.) As a result, the Court accepts the allegations in the FAC as true for purposes of its jurisdictional analysis. Holt , 46 F.3d at 1002. The party asserting jurisdiction has the burden of establishing it. Port City Properties v. Union Pacific R.R. Co. , 518 F.3d 1186, 1189 (10th Cir. 2008).

II. Pertinent Factual Background

As an initial matter, the Court notes that this case has been thoroughly litigated up to this point and received various opinions from this Court and the Tenth Circuit Court of Appeals. Those opinions have set forth the alleged facts concerning the effect of TABOR on the revenue-raising power of state and local governments in Colorado. The Court, thus, does not find it necessary to repeat what has come before, given that the alleged effect of TABOR has not changed. (See ECF No. 147–1 at ¶¶ 12–46.) What has changed in this case since its visit to the Tenth Circuit is the pertinence of the non-legislator plaintiffs. As such, the Court will summarize the allegations pertaining to the identity of the plaintiffs, and the injuries they have allegedly suffered.

A. Political Subdivisions

Several of the plaintiffs are political subdivisions of the State of Colorado, such as county commissions, boards of education, and special districts. (ECF No. 151 at ¶ 47.) Specifically, these plaintiffs are: the Board of County Commissioners of Boulder County; the Boulder Valley School District RE–2 Board of Education; Cheyenne Wells RE–5 School District Board of Education; Colorado Springs District 11 Board of Education; the Denver County Public Schools Board of Education; Gunnison County Metropolitan Recreation District Board of Directors; Gunnison Watershed RE–1J Board of Education; Poudre School District Board of Education; the Pueblo City Schools Board of Education; the Pueblo County District 70 Board of Education. (Id. at ¶¶ 57–58, 66–67, 69, 72–73, 89–91.)

Plaintiffs allege that TABOR has injured these political subdivisions by impairing their fiscal powers and responsibilities, and undermining a Republican form of government. (Id. at ¶ 47.) More specifically, with respect to the plaintiff that is a board of county commissioners, it is alleged that TABOR has caused it to incur costs and expenses to present matters to voters affecting the exercise of the board's fiscal powers. (Id. at ¶ 43.) With respect to the special-district plaintiff, it is alleged that TABOR has impaired the special district's authority to fulfill its responsibilities and caused the incurrence of costs. (Id. at ¶ 45.) With respect to the school-district plaintiffs, it is alleged that TABOR has prevented adequate funding of public schools in the State. (Id. at ¶¶ 34–35.)

In addition, attached to plaintiffs' response to the motion to dismiss, are various resolutions or affidavits from the political-subdivision plaintiffs. (ECF No. 160–2 to ECF No. 160–14.) Given that this is a facial challenge to the allegations of the FAC, it is far from certain that documents attached to pleadings outside the FAC can be considered. See Holt , 46 F.3d at 1002–03 (explaining that, for purposes of a factual attack, a court has wide discretion to consider documents outside the complaint, but not explicitly stating that such discretion applies to a facial challenge). Nonetheless, so the record is complete, the Court will summarize the documents.

Succinctly, and pertinently, the resolutions or affidavits state that TABOR has caused the respective political subdivisions to incur costs and expenses in presenting matters to voters for decision; matters, which, without TABOR, the political subdivisions would not have needed to present to voters. (See, e.g. , ECF No. 160–3 at 2–3.) All of the political subdivisions have submitted a resolution of their respective board (ECF Nos. 160–2 to 160–7; ECF No. 160–9; ECF No. 160–11; ECF Nos. 160–13 to 160–14), and some of the school districts have also submitted affidavits (ECF Nos. 160–8, 160–10, 160–12). Almost all of the resolutions or affidavits reference specific matters that have been presented to voters, such as mill levy overrides. (ECF No. 160–3 at 3; ECF No. 160–4 at 2; ECF No. 160–5 at 3; ECF No. 160–6 at 2; ECF No. 160–8 at 2–3; ECF No. 160–10 at 2; ECF No. 160–12 at 2; ECF No. 160–13 at 2–3; ECF No. 160–14 at 2).¹ Most of the resolutions or affidavits are signed on behalf of school districts (ECF No. 160–2 to ECF No. 160–12), but, one resolution is signed on behalf of a board of county commissioners (ECF No. 160–13), and one resolution is signed on behalf of a special district (ECF No. 160–14).

B. Elected Officials, Educators, and Citizens

Despite the Tenth Circuit's June 3, 2016 holding, plaintiffs leave in the FAC allegations pertaining to the injuries suffered by several plaintiffs due to their positions as legislators. (See ECF No. 151 at ¶¶ 48–49.) Those allegations are obviously irrelevant to the Court's current standing analysis in light of the remand order. The Court notes the allegations, however, for completion purposes.

The plaintiffs listed as elected officials, educators, and/or citizens are: Andy Kerr, as an elected official, educator, and citizen; Norma V. Anderson, as a former elected official and citizen; Jane M. Barnes, as a former elected official and citizen; K.C. Becker, as an elected official and citizen; Elaine Gantz Berman, as a former elected official and citizen; Dr. Alexander E. Bracken, as a citizen; William K. Bregar, as a former elected official and citizen; Bob Briggs, as a former elected official and citizen; Bruce W. Broderius, as a former elected official and citizen; Trudy B. Brown, as a citizen; Stephen A. Burkholder, as a former elected official and citizen; Richard L. Byyny, as a citizen; Lois Court, as an elected official and citizen; Richard E. Ferdinandsen, as a former elected official and citizen; Stephanie Garcia, as a former elected official and citizen; Kristi Hargrove, as a citizen; Christopher J. Hansen, as an elected official and citizen; Leslie Herod, as a an elected official and citizen; Dickey Lee Hullinghorst, as a former elected official and citizen; Nancy Jackson, as a former elected official and citizen; William G. Kaufman, as a former elected official and citizen; Claire Levy, as a former elected official and citizen; Susan Lontine, as an elected official and citizen; Margaret Markert, as a former elected official and citizen; Megan J. Masten, as a citizen; Michael Merrifield, as an elected official and citizen; Marcella L. Morrison, as former elected official and citizen; John P. Morse, as a former elected official and citizen; Pat Noonan, as a former elected official and citizen; Ben Pearlman, as a former elected official and citizen; Wallace Pullman, as a citizen; Paul Weissmann, as an elected official and citizen; and Joseph W. White, as an educator and citizen. (Id. at ¶¶ 52–56, 59–65, 68, 70–71, 74–88, 92–94.)

Plaintiffs allege that citizens have protectable interests in a Republican form of government and in their elected representatives discharging "inherently legislative" functions such as taxation and appropriation. (Id. at ¶ 95.) Plaintiffs allege that TABOR has injured citizens by injuring their...