Kerr v. Hickenlooper
824 F.3d 1207
| 10th Cir. | 2016Background
- Plaintiffs: a mix of current/former Colorado government officials, parents, educators; among them five current state legislators ("legislator-plaintiffs").
- Challenge: plaintiffs sued Governor Hickenlooper contesting Colorado's Taxpayer’s Bill of Rights (TABOR), which restricts state/local revenue-raising absent voter approval.
- District court: dismissed Equal Protection claim but held the legislator-plaintiffs had standing and avoided the political-question issue; certified that standing ruling for interlocutory appeal under 28 U.S.C. § 1292(b).
- Tenth Circuit Kerr I: initially affirmed district court, concluding individual legislators plausibly alleged vote-nullification (Coleman-like) injury sufficient for standing.
- Supreme Court intervened in Arizona State Legislature v. Arizona Independent Redistricting Commission, clarifying that a legislature as an institution may have standing for institutional injuries when authorized by the body.
- On remand, the Tenth Circuit held the individual legislator-plaintiffs lack standing because they assert only an institutional injury and did not sue as the institutional legislature.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do individual state legislators have Article III standing to challenge TABOR? | Legislators: TABOR nullifies their votes on taxation and appropriation, causing Coleman-style vote-nullification injury. | Governor: Alleged injury is institutional/abstract and thus non-justiciable under Raines; plaintiffs lack authorization to represent the legislature. | No — individual legislators lack standing because they assert only an institutional injury and did not sue as the legislature. |
| Does Arizona change the Raines/Coleman analysis used in Kerr I? | N/A (Arizona is intervening authority) | N/A | Yes — Arizona distinguishes institutional plaintiffs (the legislature) from individual legislators, making the injury’s institutional character dispositive for individual-legislator standing. |
| Is an amicus appearance by the legislature sufficient to make legislators institutional plaintiffs? | Legislators pointed to General Assembly amicus support. | Governor: amicus status does not make plaintiffs institutional representatives; authorization must exist when suit filed. | No — amicus briefs and later legislative votes do not retroactively authorize individual legislators to sue as the institution. |
| Should the court resolve standing of non-legislator plaintiffs or political-question defenses on interlocutory appeal? | N/A | Governor urged full resolution of jurisdictional issues. | Court declined; vacated certified order as to legislators and remanded for district court to determine standing of non-legislator plaintiffs and, if necessary, consider other justiciability issues. |
Key Cases Cited
- Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 135 S. Ct. 2652 (2015) (legislature-as-institution has standing to assert institutional injury when authorized)
- Raines v. Byrd, 521 U.S. 811 (1997) (individual members of Congress lacked standing to challenge federal statute; distinguished Coleman)
- Coleman v. Miller, 307 U.S. 433 (1939) (group of state senators had standing where votes were rendered ineffective/nullified)
- Kerr v. Hickenlooper (Kerr I), 744 F.3d 1156 (10th Cir. 2014) (prior panel held individual legislators had standing; vacated after Arizona)
- Powell v. McCormack, 395 U.S. 486 (1969) (individual legislator can sue to vindicate personal right to hold seat)