10th Circuit revives lawsuit challenging Colorado’s Taxpayer Bill of Rights

Yesterday the Tenth Circuit added another chapter to the long-running saga of Kerr v. Hickenlooper, a lawsuit challenging Colorado’s Taxpayer Bill of Rights (TABOR). Colorado voters adopted TABOR via an initiative process in the early 1990s. TABOR requires voter approval of new taxes or increases in tax rates. So as you might expect, it’s not popular among politicians. Some Colorado politicians filed this lawsuit, claiming that TABOR violates the Guarantee Clause of the U.S. Constitution (Article IV, Section 4), which provides that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government[.]”

I’ve previously written about this case here and here, noting problems with this lawsuit: (1) the meaning of the Guarantee Clause is uncertain; (2) it’s hard to see why TABOR is un-republican, since many states allow citizens to enact or repeal laws or state constitutional provisions; and (3) if this claim were successful it would open the door for federal courts to supervise and overrule the States’ legislative processes in previously unimagined ways.

In a 2016 decision in this case, the Tenth Circuit held that individual legislators lacked standing to challenge TABOR. On remand, several local government entities (i.e. school districts, a special district board, and a county commission) were added as plaintiffs. The district court, however, dismissed their claims because these plaintiffs lacked “political subdivision standing,” under which political subdivisions of a state lack standing to sue the state that created them, unless they are asserting a claim under a federal statute that specifically provides rights to political subdivisions.

But in yesterday’s opinion, written by Judge Stephanie Seymour, the Tenth Circuit held that it was error for the district court to reach this decision, because in doing so it had to construe the meaning of the Guarantee Clause, thereby “impermissibly delving into the merits of the case.” Thus, the standing question is so intertwined with the merits, that it cannot be reached on a Rule 12(b)(1) motion to dismiss.

Judge Jerome Holmes dissented. He would have held that it was proper for the district court to determine whether the Guarantee Clause specifically provides rights to the plaintiffs as part of a threshold standing analysis, and that the plaintiffs failed to show that it does. To my mind, Judge Holmes’ discussion of the relevant precedents seems convincing.

In addition, this case is being covered in the local news media. For example, Anna Staver has this story in the Denver Post.

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