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March 28, 2014
  Kerr v. Hickenlooper - 10th Circuit
Case Name: Kerr v. Hickenlooper

Headline: Tenth Circuit holds that Colorado state legislators have standing to bring Guarantee Clause claims against Colorado governor, and that Guarantee Clause claims are not barred by the political question doctrine.

Area(s) of Law: Constitutional Law

Issue(s) Presented:

1. Do Colorado state legislators have standing to bring Guarantee Clause claims against the Governor of Colorado, seeking enjoinder of provisions of the Colorado Taxpayers' Bill of Rights?

2. Are Guarantee Clause claims barred by the political question doctrine?

Brief Summary:

Colorado state legislators sought to invalidate key provisions of the Colorado Taxpayers' Bill of Rights (TABOR), claiming that those provisions interfered with their constitutional voting abilities and thus violated the Guarantee Clause of the federal constitution. Colorado Governor John Hickenlooper, the named party tasked with defending TABOR, argued that the legislators' claims ought to be dismissed for lack of standing, and as nonjusticiable under the political question doctrine.

The Tenth Circuit found that TABOR had caused actionable injury to the legislative plaintiffs by depriving them of their unique ability to affect Colorado tax policy by their votes, and (upon quick findings of causation and redressability) held that those plaintiffs possessed both Article III and prudential standing. The court held that a case-by-case approach to the political question doctrine was required by Baker v. Carr, and that the legislative plaintiffs' Guarantee Clause claims were not barred as nonjusticiable by any of the six factors detailed in that case.

Extended Summary:

The Colorado Taxpayers' Bill of Rights (TABOR) was enshrined in the Colorado state constitution by voter initiative in 1992. TABOR requires that all new taxes be directly approved by voters, and that all new spending (with narrow exception) be directly approved by voters. In Kerr v. Hickenlooper, the Tenth Circuit held that the Guarantee Clause of the federal Constitution served as a valid basis for a challenge by Colorado state legislators and educators to these key provisions of TABOR.

In response to the plaintiffs' Guarantee Clause claim, the named defendant (Colorado Governor John Hickenlooper) argued that the plaintiffs lacked Article III standing and prudential standing, and that plaintiffs' Guarantee Clause claims were barred by the political question doctrine. The district court found that plaintiffs possessed Article III standing and prudential standing, and that the political question doctrine did not bar plaintiffs' Guarantee Clause claims. The defendant sought permission to file an interlocutory appeal; permission was granted, and the Tenth Circuit addressed each of defendant's arguments in sequence.

With regard to Article III standing, the court recited the standard elements from Lujan v. Defenders of Wildlife, and devoted the bulk of its analysis to the "concrete and particular injury" prong. In assessing whether or not TABOR caused injury to the plaintiffs, the court examined two federal Supreme Court cases dealing with the standing of legislators: Coleman v. Miller and Raines v. Byrd. Under Coleman, legislators suffer actionable injury where their votes are "completely nullified" by some intervening cause. In contrast, under Raines, legislators facing "the abstract dilution of legislative power" - for instance, by an executive's utilization of a line-item veto - do not suffer actionable injury.

The Tenth Circuit acknowledged that "neither Coleman nor Raines maps perfectly onto the alleged injury in this case," but found that the allegations of the plaintiff legislators "[fell] closer to the theory of vote nullification espoused in Coleman than to the abstract dilution theory rejected in Raines." What TABOR effectuated, the court wrote, was function nullification - the complete inability of legislators to use their votes to bring about a tax or spending increase. The court found that under the line of precedent extending from Coleman, the deprivation of a legislator's opportunity to vote was an injury in fact. Finding in short order that this injury was both clearly traceable to TABOR and easily remedied by its invalidation, the court found that the legislative plaintiffs had Article III standing and affirmed the judgment of the district court.

The court then turned to a quick prudential standing analysis. In response to the defendant's argument that the legislative plaintiffs' injury constituted a "generalized grievance," the court reiterated that TABOR did not simply amount to a decrease in the amount of tax revenue collected by the state - it amounted to the targeted deprivation of legislative powers unique to members of the Colorado General Assembly. As such, these plaintiffs were not asserting a "generalized grievance," and dismissal on the grounds of prudential standing was not warranted.

Finally, the Tenth Circuit addressed the defendant's argument that plaintiffs' Guarantee Clause claim was barred by the political question doctrine. First, the court discussed whether or not Guarantee Clause claims against state constitutional amendments were categorically prohibited by the political question doctrine. The court found some support for a categorical bar in the language of Luther v. Borden and Pacific States Telephone & Telegraph Co. v. Oregon. In Luther - where the Supreme Court was asked to decide "which of two putative governments legitimately controlled Rhode Island" - the Court held that Guarantee Clause claims were political questions more properly directed to Congress than the judiciary. In Pacific States, a case where a corporation claimed that a recently implemented popular referendum system violated its rights under the Guarantee Clause, the Court found Guarantee Clause claims to be "political and governmental, and embraced within the scope of powers conferred by Congress."

"Had those been the Supreme Court's final words on the justiciability of the Guarantee Clause," the Tenth Circuit wrote, "a categorical approach might be proper." Of course, the court noted, this was not the case. Baker v. Carr made perfectly clear "the need for case-by-case inquiry" whenever the political question doctrine was raised, and "the Baker Court explicitly rejected a categorical Guarantee Clause bar." Since the Baker Court was able to conclude that the decision in Luther rested on four of six of its newly articulated political question factors, there was a (somewhat fictional) absence of contradiction between the two cases. After reiterating subsequent recharacterizations of Luther's holding, the Tenth Circuit decided that Baker continued to hold the field, and that case-by-case inquiry remained the proper approach to Guarantee Clause claims.

Second, the court applied the six-factor "political question" test articulated in Baker v. Carr. With regard to the first factor, the court wrote that "the omission of any mention of Congress from the Guarantee Clause, despite Congress' prominence elsewhere in Article IV" - in addition to the simple fact of the Guarantee Clause's inclusion in Article IV, rather than Article I - "indicate[d] there is no 'textually demonstrable commitment [of the Clause to a coordinate branch of government]... barring our review."

With regard to the second Baker factor - a lack of judicially discoverable and manageable standards - the court noted that "there is sparse judicial precedent interpreting the Guarantee Clause to aid our analysis," before adding (somewhat defiantly) that it was "unwilling to allow dicta suggesting that the Guarantee Clause is per se nonjusticiable to become a self-fulfilling prophecy." In order to develop judicially manageable standards, the panel stated, analysis of the Guarantee Clause "must be permitted to reach the stage of ligation [beyond summary dismissal] where such standards are developed."

With regard to the third Baker factor, prohibiting the making of a "policy determination of a kind clearly for nonjudicial discretion," the court reiterated its interpretive responsibility under Marbury v. Madison before noting that "we 'cannot avoid [that] responsibility merely because the issues have political implications.'" The court allowed this obvious tension to hang in the air, and added (without apparent authority) that "deciding whether a state's form of government meets a constitutionally mandated threshold does not require any sort of 'policy determination' as courts applying the Baker tests have understood that phrase."

The remaining three Baker factors were summarily dismissed. The court affirmed the standing and political question rulings of the district court and remanded for further proceedings. Interestingly, the court added in the concluding lines of its opinion that anti-TABOR claims by the legislative plaintiffs under the Colorado Enabling Act were "independently justiciable for reasons that do not apply to the Guarantee Clause claim," quoting the D.C. Circuit to the effect that "the Supreme Court has never applied the political question doctrine in a case involving alleged statutory violations."

To read the full opinion, please visit:

Panel: Briscoe, Seymour, Lucero

Date of Issued Opinion: March 7, 2014

Docket Number: 12-1445

Decided: District court rulings as to standing and the political question doctrine affirmed; remanded for further proceedings.

Counsel: 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, Colorado, 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, Colorado for the Plaintiffs-Appellees.

Richard A. Westfall, Hale Westfall, LLP, Denver, Colorado 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, Colorado, 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, Colorado, 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, Colorado, 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, Colorado, 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, Colorado, 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, Colorado, and Maureen Reidy Witt,
Holland & Hart, Greenwood Village, Colorado, 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, Colorado, 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 Franscisco, California,
filed an amicus curiae brief for Colorado Parent Teacher Association on behalf of

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

Author: Lucero

Case Alert Author: Levi A. Monagle

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Dawinder Sidhu @ 03/28/2014 06:02 PM     10th Circuit  

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