Kerr v. Hickenlooper

744 F.3d 1156

Andy KERR, Colorado State Representative; Norma Anderson; Jane M. Barnes, member Jefferson County Board of Education; Elaine Gantz Berman, member State Board of Education; Alexander E. Bracken; William K. Bregar, member Pueblo District 70 Board of Education; Bob Briggs, Westminster City Councilman; Bruce W. Broderius, member Weld County District 6 Board of Education; Trudy B. Brown; John C. Buechner, Ph.D., Lafayette City Councilman; Stephen A. Burkholder; Richard L. Byyny, M.D.; Lois Court, Colorado State Representative; Theresa L. Crater; Robin Crossan, member Steamboat Springs RE–2 Board of Education; Richard E. Ferdinandsen; Stephanie Garcia, member Pueblo City Board of Education; Kristi Hargrove; Dickey Lee Hullinghorst, Colorado State Representative; Nancy Jackson, Arapahoe County Commissioner; William G. Kaufman; Claire Levy, Colorado State Representative; Margaret (Molly) Markert, Aurora City Councilwoman; Megan J. Masten; Michael Merrifield; Marcella (Marcie) L. Morrison; John P. Morse, Colorado State Senator; Pat Noonan; Ben Pearlman, Boulder County Commissioner; Wallace Pulliam; Paul Weissmann; Joseph W. White, Plaintiffs–Appellees,

v. John HICKENLOOPER, Governor of Colorado, in his official capacity, Defendant–Appellant.D'Arcy W. Straub; Independence Institute; Cato Institute; Sen. Kevin Lundberg; Rep. Jerry Sonnenberg; Rep. Justin Everett; Rep. Spencer Swalm; Rep. Janak Joshi; Rep. Perry Buck; Sen. Ted Harvey; Sen. Kent Lambert; Sen. Mark Scheffel; Sen. Kevin Grantham; Sen Vicki Marble; Sen. Randy Baumgardner; Rep. Dan Nordberg; Rep. Frank McNulty; Rep. Jared Wright; Rep. Chris Holbert; Rep. Kevin Priola; Sen. Scott Renfroe; Sen. Bill Cadman; Colorado Union of Taxpayers Foundation; National Federation of Independent Business; Tabor Foundation; Oklahoma Council for Public Affairs; Howard Jarvies Taxpayers Foundation; Freedom Center of Missouri; Freedom Foundation; Goldwater Institute; 1851 Center for Constitutional Law; Colorado Chapter of the American Academy of Pediatrics and Colorado Nonprofit Association; Colorado General Assembly; Bell Policy Center; Colorado Fiscal Institute; The Center on Budget and Policy Priorities; Colorado Parent Teacher Association; Erwin Chemerinsky; Hans Linde; William Marshall; Gene Nichol; William Wiecek; Colorado Association Of School Boards; Colorado Association Of School Executives, Amici Curiae.

No. 12–1445.

United States Court of Appeals, Tenth Circuit.

March 7, 2014.

Daniel D. Domenico, Solicitor General (John W. Suthers, Attorney General, Frederick R. Yarger, Assistant Solicitor General, Bernie Buescher, Deputy Attorney General, Megan Paris Rundlet, Assistant Attorney General, with him on the briefs), Office of the Attorney General for the State of Colorado, Denver, CO, for the Defendant–Appellant.

David E. Skaggs (Lino S. Lipinsky de Orlov, Herbert Lawrence Fenster, McKenna Long & Aldridge LLP; Michael F. Feeley, John A. Herrick, Geoffrey M. Williamson, and Carrie E. Johnson, Brownstein Hyatt Farber Schreck LLP, with him on the briefs), Denver, CO, for the Plaintiffs–Appellees.

Richard A. Westfall, Hale Westfall, LLP, Denver, CO, and Karen R. Harned and Luke A. Wake, NFIB Small Business Legal Center, Washington, DC, filed an amicus curiae brief for National Federal of Independent Business, Tabor Foundation, Oklahoma Council for Public Affairs, Howard Jarvies Taxpayers Foundation, Freedom Center of Missouri, 1851 Center for Constitutional Law, Freedom Foundation, and Goldwater Institute on behalf of Defendant–Appellant.

David B. Kopel, Independence Institute, Denver, CO, and Ilya Shapiro, Cato Institute, Washington, DC, filed an amicus curiae brief for Independence Institute and Cato Institute on behalf of Defendant–Appellant.

James M. Manley, Mountain States Legal Foundation, Lakewood, CO, filed an amicus curiae brief for Sen. Kevin Lundberg, Rep. Jerry Sonnenberg, Rep. Justin Everett, Rep. Spencer Swalm, Rep. Janak Joshi, Rep. Perry Buck, Sen. Ted Harvey, Sen. Kent Lambert, Sen. Mark Scheffel, Sen. Kevin Grantham, Sen. Vicki Marble, Sen. Randy Baumgardner, Rep. Dan Nordberg, Rep. Frank McNulty, Rep. Jared Wright, Rep. Chris Holbert, Rep. Kevin Priola, Sen. Scott Renfroe, Sen. Bill Cadman, and Colorado Union of Taxpayers Foundation on behalf of Defendant–Appellant.

D'Arcy W. Straub, Littleton, CO, filed an amicus curiae brief for D'Arcy W. Straub, on behalf of Defendant–Appellant.

Andrew M. Low, Emily L. Droll, and John M. Bowlin, Davis Graham & Stubbs LLP, Denver, CO, filed an amicus curiae brief for Colorado Association of School Boards and Colorado Association of School Executives on behalf of Plaintiffs–Appellees.

Melissa Hart, University of Colorado Law School, Boulder, CO, filed an amicus curiae brief for Erwin Chemerinsky, Hans Linde, William Marshall, Gene Nichol, and William Wiecek on behalf of Plaintiffs–Appellees.

Joseph R. Guerra and Kathleen Mueller, Sidley Austin LLP, Washington, DC, filed an amicus curiae brief for The Center on Budget and Policy Priorities on behalf of Plaintiffs–Appellees.

Stephen G. Masciocchi, Holland & Hart, Denver, CO, and Maureen Reidy Witt, Holland & Hart, Greenwood Village, CO, filed an amicus curiae brief for The Colorado General Assembly on behalf of Plaintiffs–Appellees.

Matthew J. Douglas, Holly E. Sterrett, Paul W. Rodney, and Nathaniel J. Hake, Arnold & Porter LLP, Denver, CO, filed an amicus curiae brief for the Bell Policy Center and the Colorado Fiscal Institute on behalf of Plaintiffs–Appellees.

Catherine C. Engberg, Shute, Mihaly & Weinberger LLP, San Francisco, CA, filed an amicus curiae brief for Colorado Parent Teacher Association on behalf of Plaintiffs–Appellees.

Harold A. Haddon and Laura G. Kastetter, Haddon, Morgan and Foreman, P.C., Denver, CO, filed an amicus curiae brief for Colorado Chapter of the American Academy of Pediatrics and Colorado Nonprofit Association on behalf of Plaintiffs–Appellees.

Before BRISCOE, Chief Judge, SEYMOUR and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

Article IV, § 4 of the Constitution of the United States of America guarantees to the State of Colorado a “Republican Form of Government.” It provides: “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.” U.S. Const. art. IV, § 4. This right to a republican form of government is further assured and mandated by the enabling act of Congress, Colorado Enabling Act, ch. 139, § 4, 18 Stat. 474, 474 (1875), under which the State was admitted to the Union in 1876.

Various groups, and in particular, several Colorado state legislators, brought an action in the U.S. District Court for the District of Colorado. They claim that the so-called Taxpayer's Bill of Rights, TABOR, violates the Guarantee Clause of the federal Constitution, is in direct conflict with provisions of the Enabling Act, and impermissibly amends the Colorado Constitution.

In order to avoid Eleventh Amendment sovereignty issues, the Governor of Colorado, John Hickenlooper, was designated as the named defendant. Governor Hickenlooper filed his Answer to the plaintiffs' Complaint, and promptly followed with a motion to dismiss, alleging that plaintiffs lacked Article III standing and prudential standing, and that their claims were barred by the political question doctrine. This motion was denied by the district court, and the Governor brings this appeal to us, asserting error and asking us to dismiss the proceedings on the same bases that he presented to the district court.

The merits of the case are not before us. We express no view on the substantive issues and intend none. We consider solely standing and the political question doctrine: whether these plaintiffs have suffered a particularized injury not widely shared by the general populace that entitles them to have their case heard by the federal courts, and whether the question presented is purely political in nature and should not be reached by the courts. We conclude that these plaintiffs may bring their claims and that the political question doctrine does not bar our consideration. Exercising jurisdiction under 28 U.S.C. § 1292(b), we affirm the district court's ruling and remand for further proceedings.

I

Article X, § 20 of the Colorado Constitution—better known as the Taxpayer's Bill of Rights or TABOR—was adopted by voter initiative in 1992. ¹ TABOR limits the revenue-raising power of the state and local governments by requiring “voter approval in advance for ... any new tax, tax rate increase, mill levy above that for the prior year, valuation for assessment ratio increase for a property class, or extension of an expiring tax, or a tax policy change directly causing a new tax revenue gain.” Colo. Const. art. X, § 20, cl. 4(a). TABOR also limits state year-to-year spending increases to “inflation plus the percentage change in state population in the prior calendar year,” id. cl. 7(a), requires that revenue exceeding this limit “be refunded in the next fiscal year unless voters approve a revenue change,” id. cl. 7(d), and bans any “new state real property tax or local district income tax,” id. cl. 8(a). Like all provisions in Colorado's Constitution, TABOR may be revoked or amended only with voter approval. Id. art. XIX, § 2 (“[A]mendments shall be submitted to the registered electors of the state for their approval or rejection, and such as are approved by a majority of those voting thereon shall become part of this constitution.”); id.§ 1 (requiring voter approval to call constitutional convention).

More than thirty citizens of Colorado—including educators, parents of school-age children, and current and former state legislators—brought this suit against Colorado Governor John Hickenlooper in May 2011. The Second Amended Substitute Complaint for Injunctive...