Kerr v. Hickenlooper

824 F.3d 1207, 2016 WL 3126203
Court of Appeals for the Tenth Circuit·Decided June 3, 2016·No. No. 12-1445·Published·Cited by 26 cases

Opinion

LUCERO, Circuit Judge.

We are asked to take a second look at this case to consider the effect of the Supreme Court’s intervening opinion in Arizona State Legislature v. Arizona Independent Redistricting Commission, — U.S. -, 135 S.Ct. 2652, 192 L.Ed.2d 704 (2015) (hereinafter “Arizona”). See Hickenlooper v. Kerr, — U.S. -, 135 S.Ct. 2927, 192 L.Ed.2d 956 (2015). In Arizona, the Supreme Court held that the Arizona Legislature as an institution had standing to challenge a voter-approved proposition. 135 S.Ct. at 2659. For standing purposes, the Arizona Court distinguished individual legislators, cf. Raines v. Byrd, 521 U.S. 811, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997), from a legislature as a whole for claims challenging a legislature’s power. We conclude that this rule of law materially alters the jurisprudence on legislator standing and compels us to reverse course from our previous opinion in Kerr v. Hickenlooper, 744 F.3d 1156 (10th Cir. 2014), vacated sub nom. — U.S. -, 135 S.Ct. 2927, 192 L.Ed.2d 956 (2015), (hereinafter “Kerr I”), in which we affirmed the district court’s ruling that individual legislators had standing. We now conclude that these individual legislators lack standing because they assert only an institutional injury. We vacate the district court’s order and remand for further proceedings.

I

Plaintiffs are current and former government officials in Colorado, parents of school-aged children, and educators. They filed suit in the district court advancing several challenges to Article X, § 20 of the Colorado Constitution, commonly referred to as the Taxpayer’s Bill of Rights (“TABOR”). TABOR limits the revenue-raising power of 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). The defendant, Governor John Hickenlooper, moved to dismiss the complaint. He argued that the plaintiffs lacked standing, that their claims presented nonjusticiable political questions, and that they failed to state a claim under the Equal Protection Clause.

The district court granted in part and denied in part the Governor’s motion to dismiss. It dismissed plaintiffs’ equal protection claim, but concluded that certain plaintiffs, who were current state legislators (the “legislator-plaintiffs”), had standing and that their claims were not barred by the political question doctrine. The court declined to consider whether any other plaintiffs possessed standing. Upon motion by Governor Hickenlooper, the district court certified its order for interlocutory appeal under 28 U.S.C. § 1292(b). We [1212] accepted jurisdiction and affirmed. Kerr I, 744 F.3d at 1183.

In Kerr I, we wrestled with the two essential Supreme Court cases on legislator standing, Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939), and Raines. In Coleman, the Court considered a challenge to Kansas’ ratification of a proposed constitutional amendment after the lieutenant governor cast a tie-breaking vote in the state senate. 307 U.S. at 435, 59 S.Ct. 972. The Court held that twenty-one state senators, including the twenty who voted against ratification, possessed standing to sue because their “votes against ratification have been overridden and virtually held for naught although if they are right in their contentions their votes would have been sufficient to defeat ratification.” Id. at 438, 59 S.Ct. 972. It concluded that “these senators have a plain, direct and adequate interest in maintaining the effectiveness of their votes.” Id.

In Raines, the Court considered whether the Line Item Veto Act (“LIVA”) caused cognizable injury by granting the President the authority to cancel certain spending and tax measures after signing them into law. 521 U.S. at 814, 117 S.Ct. 2312. The Court held that six members of Congress who voted against LIVA lacked standing to challenge the law. Id. at 813-14, 117 S.Ct. 2312. It distinguished Coleman on the ground that the legislators in that case had their votes “completely nullified.” Id. at 823, 117 S.Ct. 2312. In contrast, the Raines challengers merely alleged an “abstract dilution of institutional legislative power.” Id. at 826, 117 S.Ct. 2312.

We acknowledged in Kerr I that neither Raines nor Coleman “maps perfectly onto the alleged injury in this case,” but concluded plaintiffs’ “allegations fall closer to the theory of vote nullification espoused in Coleman than to the abstract dilution theory rejected in Raines.” Kerr I, 744 F.3d at 1165. The legislator-plaintiffs allege that TABOR deprives them of their ability to perform the “legislative core functions of taxation and appropriation” and “re-movies] the taxing power of the General Assembly.” We determined that “[ujnder TABOR, a vote for a tax increase is completely ineffective because the end result of a successful legislative vote in favor of a tax increase is not a change in the law” and thus a legislator’s vote is “advisory from the moment it is cast.” Id. at 1165, 1166.

In making that determination, we considered several factors that distinguished this suit from Raines. In particular, we noted that legislator-plaintiffs lack a legislative remedy because “TABOR was not passed by, and cannot be repealed by, the Colorado General Assembly.” Id. at 1166. But see Raines, 521 U.S. at 824, 117 S.Ct. 2312 (noting that Congress could repeal LIVA by simple majority vote). Separation of powers concerns are not implicated because this case does not challenge an action taken by a coequal branch of the federal government. Kerr I, 744 F.3d at 1168. But see Raines, 521 U.S. at 819-20, 117 S.Ct. 2312 (“[O]ur standing inquiry has been especially rigorous when reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.”). And although the General Assembly was not a party, it submitted an amicus brief in support of standing. Kerr I, 744 F.3d at 1168. But see Raines, 521 U.S. at 829, 117 S.Ct. 2312 (noting that both houses of Congress actively opposed the suit).

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Kerr v. Hickenlooper, 824 F.3d 1207, 2016 WL 3126203 (10th Cir. 2016).

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