Kerr v. Hickenlooper
744 F.3d 1156
10th Cir.2014Background
- Guarantee Clause claim under U.S. Const. art. IV, §4 and Enabling Act challenge to TABOR; Governor Hickenlooper is named defendant to avoid Eleventh Amendment issues.
- TABOR constrains taxes/spending and requires voter approval for revenue changes; amendments require voter approval under Colorado Constitution and Enabling Act provisions.
- Plaintiffs include Colorado legislators and other citizens who allege TABOR strips legislature of core taxing/appropriating powers and impairs republican government.
- District court held legislator-plaintiffs have standing; political-question doctrine did not bar the suit; district court allowed some claims to proceed.
- Interlocutory appeal under 28 U.S.C. §1292(b) challenges the standing and political-question rulings; merits of TABOR are not yet before the court.
- Opinion preserves only standing and political-question rulings, remanding for further proceedings on the guarantees and Enabling Act claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do legislator-plaintiffs have Article III standing to challenge TABOR? | Legislators have plain, direct interest in maintaining effective votes. | TABOR injury is not cognizable; no individual injury beyond generalized grievance. | Yes; they have standing under Coleman framework (not merely abstract dilution). |
| Is prudential standing a bar to plaintiffs’ suit? | Injury is concrete and unique to legislators, not a generalized grievance. | Injury would be shared by many citizens; risks generalized harm. | Not a bar; injury is particular to legislators and not a generalized grievance. |
| Does the political-question doctrine preclude the Guarantee Clause claim? | Guarantee Clause claims are justiciable; Baker factors apply case-by-case. | Guarantee Clause claims are nonjusticiable under political-question framework. | No categorical bar; Baker six-factor test does not require dismissal at this stage. |
| Is the Enabling Act claim separably justiciable from the Guarantee Clause claim? | Enabling Act claim is statutory and justiciable; not barred by politics. | Enabling Act claim could raise similar issues. | Independently justiciable; not barred by the political-question doctrine. |
Key Cases Cited
- Coleman v. Miller, 307 U.S. 433 (U.S. 1939) (standing to maintain effectiveness of votes in legislative context)
- Raines v. Byrd, 521 U.S. 811 (U.S. 1997) (limits on legislative standing; not every loss of a vote grants standing)
- Luther v. Borden, 48 U.S. (7 How.) 1 (U.S. 1849) (textual commitment to Congress on government legitimacy; origin of political-question concerns)
- Pacific States Tel. & Tel. Co. v. Oregon, 223 U.S. 1 (U.S. 1912) (initative/referendum validity; republican government under state action)
- Baker v. Carr, 369 U.S. 186 (U.S. 1962) (six-factor test for political-question abstention; guides reviewing court's approach to guarantees)
- Schaffer v. Clinton, 240 F.3d 878 (10th Cir. 2001) (standing/prudential analysis in congressional contexts (D.C./Tenth Cir.))
- Russell v. DeJongh, 491 F.3d 130 (3d Cir. 2007) (injury-in-fact in legislative process; vote-nullification and remedies)
- Silver v. Pataki, 755 N.E.2d 842 (N.Y. 2001) (state standing; injury-in-fact analysis in state court)
- New York v. United States, 505 U.S. 144 (U.S. 1992) (discussion of Guarantee Clause and justiciability in modern context)