Case Information
*3 Before TYMKOVICH , Chief Judge, BRISCOE, HARTZ, HOLMES, BACHARACH, PHILLIPS, McHUGH, MORITZ , and EID , Circuit Judges. TYMKOVICH , Chief Judge.
Popular knowledge about the American legal system is that everyone can have his or her day in court. But a decade after various Plaintiffs challenged Colorado’s Taxpayer’s Bill of Rights (TABOR), we have yet to determine who, if anyone, can have that day in this case.
In their complaint, first filed in 2011 and most recently amended in 2016, the Plaintiffs—who include school districts and other political subdivisions—allege that TABOR’s requirement of voter approval for tax increases deprives them of a Republican Form of Government protected by the United States Constitution and Colorado’s statehood Enabling Act. According to the Plaintiffs, TABOR’s constraints and voter-involvement in tax and spending policy effectively deprive them and the people of the State of Colorado of a truly representative government.
The Governor responded by bringing a motion to dismiss the claims for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). He argued that the Plaintiffs lacked standing to sue the State of Colorado under the Republican Form of Government Clause—also known as the Guarantee Clause, see U.S. Const. art. IV, § 4—because political subdivisions cannot sue their parent state.
Applying this circuit’s precedent, the district court reviewed the complaint to determine whether the various school districts and other political subdivisions had “political subdivision standing.” Based on this doctrine, the court dismissed the complaint for lack of subject-matter jurisdiction. It concluded that neither the Guarantee Clause nor the Enabling Act authorized the political subdivisions to sue the state. A panel of this court rejected that conclusion, finding that the Plaintiffs met our requirements for political subdivision standing.
We affirm the district court’s dismissal of the Plaintiffs’ claims without prejudice. We disagree with the district court’s reasoning on standing and therefore it erred in dismissing the claims under Rule 12(b)(1). Nevertheless, it is appropriate to convert the Governor’s Rule 12(b)(1) motion to a motion to dismiss under Rule 12(b)(6). In doing so, we depart from our previous cases in which we treated the limits on actions political subdivisions can bring against their parent states as a threshold inquiry about the court’s subject-matter jurisdiction. Instead, we conclude these limits are part of a merits inquiry that addresses whether any constitutional or statutory provisions allow political subdivisions to bring a cause of action against their parent state. The Plaintiffs have not identified any provision in the Constitution or the Enabling Act authorizing Colorado’s political subdivisions to challenge TABOR. Thus, the Plaintiffs have failed to state a claim on which relief can be granted.
A majority of this en banc panel agrees that we should affirm the disposition based on Plaintiff’s failure to state a claim. Thus, the dismissal below is affirmed.
I. Background
A. Factual Background
After ten years of litigation, this case is stuck in neutral. Despite carving a well- worn path from the district court, to this court, to the Supreme Court, and back, we have yet to finally decide whether any of the Plaintiffs arе entitled to have the merits of their claims considered. A brief background of this litigation history provides helpful context for the scope of our decision today and why the day has come to affirm the dismissal of the complaint.
TABOR—codified at Article X, Section 20 of the Colorado Constitution—was adopted by voter initiative in 1992. TABOR codifies various rules that place the taxing power directly in the hands of the people, limiting the power of the state and its political subdivisions to raise revenue. Under TABOR, government entities must obtain voter approval 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 net tax revenue gain to any district.” Colo. Const. art. X, § 20, cl. 4(a). TABOR also places limits on the state’s year-to-year spending, id. at cl. 7(a), and the use of excess revenue by the state and its political subdivisions, id. at cl. 7(d). Because it was passed as a constitutional amendment, TABOR can be revoked or amended only by voter approval. Id. at art. XIX, § 2 (“[A]mendments shall be submitted to the registered electors of the state for their approval or rejection, and such as are approved by a majority of those voting thereon . . . shall become part of this constitution.”). Though numerous efforts have been made to repeal TABOR since its enactment, it has proved remarkably durable. As recently as November 2020 voters have rejected efforts to significantly overhaul or repeal TABOR.
B. Procedural Background
In 2011, the Plaintiffs—who include individual state legislators, educators, and various school districts and other political subdivisions—brought suit against then- Governor John Hickenlooper, seeking injunctive and declaratory relief from TABOR. They claimed that TABOR violates the guarantee of a “Republican Form of Government” found in Article IV, Section 4 of the United States Constitution. According to the Plaintiffs, TABOR also violates a similar guarantee found in Colorado’s Enabling Act. See 18 Stat. 474, § 4 (declaring that the state’s “constitution shall be republican in form”). They argue that under the Supremacy Clause, the Enabling Act—as federal law—should trump any conflicting state law. See U.S. Const. art. VI, cl. 2 (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land.”).
The Governor moved to dismiss the complaint, arguing the Plaintiffs lacked
standing. The district court disagreed with the Governor, concluding that the
individual state legislators had standing to challenge TABOR. The Governor appealed
that decision to this court, which affirmed the district court.
See Kerr v. Hickenlooper
(
Kerr I
),
The district court was faced with the same question it had addressed years
earlier: did any of the Plaintiffs have standing to challenge TABOR? Regarding the
remaining individual Plaintiffs, the district court noted that “plaintiffs make no effort
to discuss, analyze, or even ruminate on how the elected officials, educators, and
citizens have standing[.]”
Kerr v. Hickenlooper
,
But the district court found the political subdivisions—eight school districts, a
board of county commissioners, and a recreation district—had Article III standing.
The Plaintiffs had adequately alleged that TABOR was causing the political
subdivisions a redressable injury in fact.
Id.
at 1186. Still, the district court ultimately
dismissed the complaint. The court recognized that under this circuit’s prior cases,
political subdivisions must clear additional hurdles when bringing a claim against their
parent state.
Id.
at 1186–87 (citing
Branson Sch. Dist. RE-82 v. Romer
,
The Plaintiffs appealed to this court, arguing they had met the requirements for
political subdivision standing. Over a dissent, a panel of this court reversed the district
court’s dismissal for lack of subject-matter jurisdiction and remanded to the district
court for further proceedings.
See Kerr v. Polis
(
Kerr III
),
After the Kerr III panel issued its decision, the Governor petitioned for rehearing en banc. We granted the petition and asked the parties to specifically brief whether political subdivision standing is a jurisdictional limitation and what pоlitical subdivision standing requires.
II. Legal Framework Before addressing what political subdivision standing is and where it is best situated within our analysis, we address the threshold question of subject-matter jurisdiction.
A. Subject-Matter Jurisdiction
“Federal courts do not wield plenary jurisdiction over every slight or suit.”
Hydro Resources, Inc. v. EPA
,
The Governor does not deny that the political subdivisions have established
standing. But “[b]ecause Article III standing is a jurisdictional issue, we must satisfy
ourselves that it exists here.”
Felix v. City of Broomfield
,
B. Political Subdivision Standing
Up to this point, the parties and courts have treated political subdivision standing as an issue of subject-matter jurisdiction. We depart from this approach. The limits on when political subdivisions can bring suit that we previously referred to as “political subdivision standing” go to the merits of a case—whether a plaintiff has stated a claim on which relief can be granted—not to jurisdiction. Evaluating the Plaintiffs’ claims through this lens, we conclude the political subdivisions have not identified any constitutional or statutory provisions that authorize them to bring the present cause of action. Therefore, we affirm the dismissal of the Plaintiffs’ complaint for the alternate grounds of failure to state a claim under Rule 12(b)(6).
Below, we first describe the historical evolution of “political subdivision
standing” as a distinct consideration when subordinate governmental entities sue their
parent states (Section II.B.1), then discuss why this inquiry goes to the merits of the
Plaintiffs’ claim, rather than the court’s jurisdiction (Section II.B.2), then articulate the
proper framework for determining whether a political subdivision has stated a viable
claim against its parent state (Section II.B.3), then address why we can modify the
Guarantee Clause provides a basis upon which a State or its subdivisions may sue to
enjoin the enforcement of a federal statute, petitioners have not made out such a claim
in these cases.”);
Hanson v. Wyatt
,
We take the same approach here. Even if we assume the claims under the Guarantee Clause are justiciable, we conclude the Plaintiffs’ claims fail on the merits. district court’s judgment from a dismissal under Rule 12(b)(1) to a dismissal under Rule 12(b)(6) (Section III.A), and finally explain why the Plaintiffs here fail to state a claim under either the Constitution (Section III.B) or the Enabling Act (Section III.C).
1. History
Almost a century ago, the Supreme Court considered if and when political
subdivisions could sue their parent states. In
City of Trenton v. State of New Jersey
,
the city of Trenton claimed a New Jersey statute regarding distribution of water from
the Delaware River violated the Contracts Clause of the United States Constitution and
the Fourteenth Amendment’s Due Process Clause.
A decade later, the Court took this reasoning a step further in
Williams v. Mayor
and City Council of Baltimore
.
While these cases expressly disallowed political subdivisions from bringing suit
against their parent state under the Contracts Clause and the Fourteenth Amendment,
they were silent as to the viability of such claims brought under other constitutional
provisions or federal statutes. At least several circuits, including ours, have since
concluded that
Trenton
and
Williams
do not establish a complete bar on all suits by
political subdivisions against their parent states.
See Hous. Auth. of Kaw Tribe of
Indians of Okla. v. City of Ponca City
,
In
Kaw Tribe
,
Branson
, and
Hugo
, we left open a narrow pathway for political
subdivisions to sue their parent state. In
Kaw Tribe
, we considered constitutional and
statutory claims brought by a housing authority against a nearby city. We explained
that even though the housing authority was not directly suing the parent state, the suit
against another political subdivision should be evaluated the same way: “Simply
because we are now faced with a challenge brought by a state agency against a
municipality rather than a challenge by a municipality against an arm of the state or
state statute does not warrant a different outcome.”
Kaw Tribe
,
We then moved on to analyze whether the housing authority could sustain a suit
against another political subdivision under § 3613 of the Fair Housing Act.
See
42
U.S.C. § 3613(a)(1)(A). Although the plain text of § 3613 did not authorize the
housing authority to bring a suit, this court concluded the housing authority could
proceed with its claim against the other political subdivision.
Kaw Tribe
,
In
Branson
, a group of school districts challenged a state constitutional
amendment that would change the standard for managing land holdings held in a trust
for Colorado’s public schools. The Governor argued the school districts lacked
standing as political subdivisions.
Branson
,
We subsequently addressed political subdivision standing in
Hugo
. There, the
city brought a Dormant Commerce Clause challenge against the state of Oklahoma.
The state sought to dismiss the city’s claim based on political subdivision standing.
We agreed that the city lacked standing, explaining “the Supreme Court has made clear
that the Constitution does not contemplate the rights of political subdivisions as
against their parent states[.]”
Hugo
,
But pointing to Branson , we explained that political subdivision standing did not represent a categorical bar to all suits by political subdivisions against their parent states. Id. at 1255 (“Under the doctrine of political subdivision standing, federal courts lack jurisdiction over certain controversies between political subdivisions and their parent states.” (emphasis added)). Rather, we concluded we have jurisdiction to consider such claims when “the source of substantive rights [is] a federal statute directed at protecting political subdivisions, and the Supremacy Clause [is] invoked merely to guarantee, as a structural matter, that federal law predominates over conflicting state law.” Id. at 1257. But such claims can stand “when Congress has enacted statutory law specifically providing rights to municipalities .” Id. (emphasis added).
2. Contemporary Doctrine This was the analytical framework the district court and the Kerr III panel used when evaluating the Plaintiffs’ complaint based on the Governor’s motion to dismiss under 12(b)(1). Both treated the question of political subdivision standing as part of the threshold jurisdictional inquiry courts must make in every case. But, in light of recent Supreme Court precedent and further consideration, we have concluded this approach is no longer tenable.
The meaning of “standing” has evolved across the years. In Williams , the Supreme Court used the language of standing when discussing the inability of Baltimore to bring an action based on the Constitution against Maryland. See 289 U.S. at 47 (indicating the city was “without standing to invoke the protection of the Federal Constitution”). But at that time, courts did not consider standing to be a jurisdictional inquiry. Instead, “[a] party had standing or a ‘right to sue’ if it was correct in its claim on the merits that the statutory or constitutional provision in question protected its interests; standing was not seen as a preliminary or threshold question.” Rogers , 588 F.2d at 1070; see also William Fletcher, The Structure of Standing , 98 Yale L.J. 221, 224–28 (1988) (discussing the historical evolution of standing doctrine).
The Supreme Court has acknowledged this gradual transformation of standing
doctrine.
See Lexmark International, Inc. v. Static Control Components, Inc.,
572 U.S.
118 (2014). In
Lexmark
, the Court had to determine whether a federal statute
authorized the plaintiffs to bring suit against the defendant. The Court explained that
not just anyone could sue based on the statute. Rather, the statute “extends only to
plaintiffs whose interests fall within the zone of interest protected by the law invoked.”
Id.
at 130 (internal quotation marks omitted). In cases decided prior to
Lexmark
, the
Court had treated the zone-of-interests test as a threshold jurisdictional question of
“statutory standing” or “prudential standing.”
Id.
at 128 n.4. The Court abandoned
this practice in
Lexmark
, concluding the zone-of-interests test went to the question of
“whether a legislatively conferred cause of action encompasses a particular plaintiff’s
claim,” not whether a federal court has jurisdiction to hear the case.
Id.
at 127;
see
also id.
(“‘[P]rudential standing’ is a misnomer as applied to the zone-of-interests
analysis, which asks whether this particular class of persons has a right to sue under
this substantive statute.” (internal quotation marks omitted; alterations incorporated));
TransUnion
,
Following
Lexmark
, we now have greater clarity about which issues
anachronistically labeled as “standing” are actually jurisdictional and which are more
appropriately considered when evaluating whether a plaintiff’s claim is encompassed
by a given cause of action. We believe the “standing” in “political subdivision
standing” is a misnomer.
See Rogers
,
3. Suits Brought by Political Subdivisions Against Their Parent States
We adopt the two-step process from
Hugo
to analyze whether a political
subdivision has a cause of action against its parent state.
[4]
First, we must determine
whether the political subdivision’s cause of action rests on a substantive constitutional
provision; if so, the claim cannot proceed.
[5]
See Hugo
,
In each of these cases the Supreme Court was faced with a particular
constitutional provision.
Hunter
,
[6] The Plaintiffs rely extensively on the distinction between “individual” and
“structural/collective” rights discussed in
Branson
. But the Plaintiffs read more into
this language than it is worth. The only distinction the
Branson
court intended to
make by using these terms was between claims based on substantive provisions of the
Constitution and claims based on a federal statute.
See Hugo
,
Second, if the political subdivision brings its suit under a federal statute, we must determine whether Congress specifically intended to create a cause of action for political subdivisions. A federal statute authorizes a political subdivision to sue its parent state if the statute is “directed at protecting political subdivisions[.]” Hugo , 656 F.3d at 1257.
The Plaintiffs disagree with this formulation of the test for determining whether
political subdivisions have a cause of action. Instead, they propose we use
Lexmark
’s
zone-of-interests test to determine whether a political subdivision has a cause of action
under a federal statute. Under the zone-of-interests test, courts must determine
whether a statute actually provides the plaintiff with a cause of action. In making this
determination, courts are to “apply traditional principles of statutory interpretation” “to
determine the meaning of the congressionally enacted provision creating a cause of
action.”
Lexmark
,
We decline the Plaintiffs’ invitation to adopt the zone-of-interests test. Although this test may be appropriate in many cases involving statutorily granted invoked merely to guarantee, as a structural matter, that federal law predominates over conflicting state law. This understanding of the Supremacy Clause informs the use of the words ‘structural’ and ‘collective’ to describe the rights political subdivisions may vindicate in federal court against their parent states.” (emphasis added)). The mere fact that a claim based on the guarantee of a Republican Form of Government can be construed as “structural” does not mean the political subdivisions have a constitutional cause of action outside of the Supremacy Clause.
causes of action, we cannot simply transpose it onto claims brought by political subdivisions against their parent states. To be sure, Trenton and Williams do not categorically bar political subdivisions from suing their parent state in all instances. But the federalism concerns underlying these decisions have continuing relevance for determining whether a political subdivision has a cause of action against its parent state.
Political subdivisions are not just like any other plaintiff, particularly when they
sue their parent states. Political subdivisions have a unique relationship with their
parent states and courts should be hesitant to infer that Congress intended to intrude on
internal state matters. Such subordinate government entities are created by states for
their own administrative convenience.
See Trenton
,
When addressing such sensitive areas of federalism in other contexts, the
Supreme Court has refrained from intruding upon states’ powers apart from clear
congressional language.
Will v. Mich. Dep’t of State Police
,
The two-step process from
Hugo
we now adopt addresses these concerns and is
in line with this Supreme Court precedent. By requiring that a statute be directed at
protecting subdivisions at step two, we ensure Congress has specifically weighed the
federalism implications of a given statute and determined political subdivisions have a
particular interest in enforcing the law.
[7]
See also Hugo
,
Having articulated the proper manner for assessing whether a political subdivision has stated a claim against its parent state, we apply it to the present case. In doing so, we conclude the Plaintiffs have failed to state a claim on which relief can be granted.
A. Standard of Review
The district court and the panel originally evaluated the political subdivisions’
ability to sue their parent state as a jurisdictional issue pursuant to the Governor’s
motion to dismiss under Rule 12(b)(1). As we have described above, we hold here that
the limit on claims brought by political subdivisions has nothing to do with our
jurisdiction, but rather goes to the merits of the Plaintiffs’ claims. But in analyzing the
merits of the Plaintiffs’ claims, our inquiry is the same as the district court’s when it
evaluated jurisdiction below: Who has the ability to bring a claim under the Guarantee
Clause and the Enabling Act? And, as explained above, our approach to analyzing that
inquiry is the same. In supplemental briefing for the en banc court, the Governor
argued that because the political subdivision limitation goes to the merits we should
Nor do we need to take a position on this issue. Here, the Plaintiffs had every
opportunity to present arguments based both upon text and legislative history. And,
based on
Kaw Tribe
, they knew that legislative history could potentially be used to
determine whether Congress provided political subdivisions with a cause of action
against their parent state—regardless of whether the requirement is characterized as
jurisdictional or addressing the merits.
See
treat the motion to dismiss under Rule 12(b)(6) rather than Rule 12(b)(1). The Governor proceeded to address the merits and why the Plaintiffs have failed to state a claim. We agree. Accordingly, we now consider the Governor’s motion to dismiss under the rubric of Rule 12(b)(6) for failure to state a claim, as an alternative basis to affirm.
Thus, we apply Rule 12(b)(6)’s familiar standard for assessing whether a
plaintiff has stated a claim upon which relief can be granted. To overcome a motion to
dismiss under Rule 12(b)(6), the plaintiff’s “complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.”
Ashcroft
v. Iqbal
,
Despite agreeing that our political subdivisiоn test addresses the merits rather than jurisdiction, the Plaintiffs and Judge Briscoe’s Dissent caution us against undertaking any assessment of the merits at this point. They insist we must allow the case to proceed further to determine what a Republican Form of Government is so we can appropriately determine who it is intended to protect.
Although this argument may have had some superficial appeal when
determining whether to resolve this issue as a jurisdictional matter under Rule
12(b)(1), it is now unavailing.
See Holt v. United States
,
Judge Briscoe’s Dissent suggests that by now applying our political subdivision
test on appeal we “usurp the district court and become the first court to consider this
case on the merits.” Dissent at 24. We do no such thing. Recall, the district court
performed the correct analysis from
Hugo—
it simply did so under the wrong
procedural heading. As was the case in
Morrison
,
Thus, we affirm the dismissal on the basis of Plaintiffs’ failure to state a claim. B. The Guarantee Clause
In the complaint, the Plaintiffs allege the Guarantee Clause protects a Republican Form of Government. And they also allege that TABOR violates this guarantee “for all subordinate levels of government in the State.” Aplt. App., Vol. XI at 1447. But the complaint is entirely silent about why the political subdivisions are protected by this constitutional guarantee.
As we explained in
Hugo
, political subdivisions cannot rely on a substantive
provision of the Constitution to sustain a claim against their parent state.
C. The Enabling Act
Faced with near-certain failure on their Guarantee Clause claim, the Plaintiffs
place most of their eggs in the Enabling Act basket on appeal. They insist they “have
pled sufficient factual allegations in support of their claim,” including (1) “that
spend revenue.”);
see also id.
at 12, 15. We can and must address this claim.
[12]
The Plaintiffs also suggest
Gomillion v. Lightfoot
,
The Court’s decision in
Gomillion
does not conflict with step one of our
political subdivision test. Unlike the present challenge to TABOR,
Gomillion
did
“not involve a suit by a municipality against its parent state.”
Hugo
,
But looking inside, that basket is not very full. To be sure, we take all of the Plaintiffs’ well-pleaded facts as true at this stage. But this standard of review does not change the underlying text of the Enabling Act. And this text is of no help to the Plaintiffs. It simply states that Colorado’s “constitution shall be republican in form.” 18 Stat. 474, § 4. The Act does not specify for whom the protection is intended or give any indication that a republican government is a right intrinsic to being a political subdivision.
Undeterred by the statute’s complete silence, the Plaintiffs make a few tenuous attempts at explaining why this guarantee in the Enabling Act protects political subdivisions. For example, they point to language in the Enabling Act that identifies common schools as the beneficiaries of a land trust. Id. at §§ 7, 14. But the Plaintiffs provide no indication of how these provisions of the Enabling Act create a cause of action for political subdivisions based on the Act’s separate guarantee of a “constitution republican in form.” Id. at § 4.
Recognizing that any path forward based on the actual language of the Enabling Act is blocked, the Plaintiffs attempt to overcome the Governor’s motion to dismiss by charting a course around the Act’s plain language. In their supplemental briefing, the Plaintiffs raise a new argument: because the political subdivisions existed prior to statehood, the Enabling Act’s promise of a constitution republican in form is directed at protecting them. They reason that prior to passage of the Enabling Act, the “territorial residents had the right to govern themselves through local government institutions, and these rights were preserved under the subsequent state constitution.” Resp’t Suppl. Answer Br. at 11. Colorado did not create the subdivisions, so the Enabling Act did not deprive the subdivisions of the republican governance they enjoyed prior to statehood. Rather, the Act recognized an entrenched political reality. The Plaintiffs contend the Enabling Act’s language promising a constitution republican in form directly protects political subdivisions that pre-dated the state because they were the very institutions on which the state was formed.
This novel theory regarding why the Enabling Act provides the political subdivisions with a cause of action does not get the Plaintiffs past Rule 12(b)(6). The Plaintiffs direct us to no cases that support a cause of action under this theory—that political subdivisions that pre-existed their parent state had their rights, forms, and structures implicitly codified by statehood. Moreover, the Plaintiffs’ theory assumes the conclusion: that the Enabling Act’s guarantee of a constitution republican in form was intended to protect the political subdivisions because they were already a part of the state’s underlying form of government. But neither Congress nor Colorado had to maintain these political subdivisions in their pre-statehood form. The continued existence and function of these entities post-statеhood were simply a matter of administrative convenience for the state. The fact remains that Congress was silent about whether it intended to protect the political subdivisions through the Enabling Act’s promise of a “constitution republican in form.” 18 Stat. 474, § 4. The Plaintiffs ask us to infer a novel cause of action based on speculative historical exigencies. We decline to do so.
Looking at the Enabling Act’s language, we conclude the Plaintiffs cannot state
a claim under the Act’s promise of a republican constitution. Neither the Enabling
Act’s text nor structure supports the political subdivisions’ arguments. The clause
promising a constitution republican in form has no clear beneficiary. And aside from
the aforementioned references to common schools in other sections of the Enabling
Act, references to other subordinate political entities are nowhere to be found. At
most, the Enabling Act specifies that “the constitution and State government shall be
formed
for the people
of said Territory of Colorado.” 18 Stat. 474, § 5 (emphasis
added). Just because the Plaintiffs believe that they should be included in the scope of
the promise of a republican government does not make it so. As we required in
Hugo
,
and restate here, the relevant statute must be “directed at protecting political
subdivisions[.]”
* * * The Plaintiffs have failed to identify any source providing them with a cause of action to challenge TABOR. Without a constitutional or statutory provision on which to hang their hat, the Plaintiffs cannot state a claim on which relief can be granted. Thus, we affirm the dismissal of the Plaintiffs’ complaint under Rule 12(b)(6).
IV. Conclusion We AFFIRM the district court’s dismissal of the Plaintiffs’ claims. While the district court erred in evaluating the political subdivisions’ claims as a jurisdictional matter under Rule 12(b)(1), we agree with the substance of its reasoning. Because the limitations on suits that political subdivisions can bring against their parent states goes to the merits, we consider the Governor’s Rule 12(b)(1) motion as a Rule 12(b)(6) motion for failure to state a claim. In doing so, we find that the Constitution’s Guarantee Clause does not supply the political subdivisions with a cause of action. Likewise, because the Enabling Act is not directed at protecting the political subdivisions, the Plaintiffs cannot overcome the Governor’s motion to dismiss. Given that neither the Constitution nor the Enabling Act authorize suit by the political subdivisions here, we affirm the district court’s order dismissing these claims without prejudice.
17-1192, Kerr v. Polis , TYMKOVICH , Chief Judge, concurring. Hartz and Eid, Circuit Judges, joining in the concurrence. Holmes, Circuit Judge, joining as to Part II only.
I agree with the majority’s decision to affirm the order below and with its analysis. But I would also dismiss the political subdivision claims as nonjusticiable political questions. Further, because the majority disposition reaches the substance of the claims and thus has the effect of preventing Plaintiffs from refiling their case, I would label it a dismissal with prejudice.
I. Plaintiffs’ claims are nonjusticiable political questions.
Though I agree that the Plaintiffs have failed to stаte a claim under Rule
12(b)(6), this case should be even more open and shut. The Plaintiffs’ claims based on
the Guarantee Clause and the Enabling Act are nonjusticiable political questions
beyond the purview of this court and should have been dismissed at the outset.
Supreme Court precedent requires this conclusion.
Pacific States Telephone &
Telegraph Co. v. Oregon
,
Despite clear precedent to the contrary, an earlier panel of this court deemed the
Plaintiffs’ claims to be justiciable.
See Kerr v. Hickenlooper
(
Kerr I
),
A. Claims Brought Under the Guarantee Clause are Nonjusticiable
Federal courts lack jurisdiction to hear cases that involve a political question. A
case involves a political question “where there is ‘a textually demonstrable
constitutional commitment of the issue to a coordinate political department; or a lack
of judicially discoverable and manageable standards for resolving it.’”
Zivotofsky ex
rel. Zivotofsky v. Clinton
,
In answering this question, we are not writing on a clean slate.
First, in
Luther v. Borden
,
under [the Guarantee Clause] it rests with Congress to decide what government is the established one in a State .
For as the United States guarantees to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not. And when the senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal .
Decades later, the Supreme Court again came to the same conclusion—claims
brought under the Guarantee Clause are nonjusticiable political questions.
Pacific
States
,
Despite the Supreme Court’s clear rejection of claims brought under the
Guarantee Clause in
Pacific States
, the
Kerr I
panel concluded the case did not dictate
the outcome for the Plaintiffs’ challenge of TABOR. The panel distinguished the
Plaintiffs’ case from
Pacific States
. According to the panel, the plaintiffs in
Pacific
States
presented a “much broader legal challenge” because the case involved a
“wholesale attack[] on the validity of a state’s government rather than, as before us [in
Kerr I
], a challenge to a single provision of a state constitution.”
Kerr I
,
But this is a misreading of
Pacific States
. The challenge in that case was to a
plebiscite tax—or, read most broadly, to a 1902 amendment to the Oregon Constitution
allowing for popular ballot initiatives and referenda, such as the plebiscite tax. Chief
Justice Edward White, writing for the majority, proclaimed that the taxpayer’s position
was, in essence, a claim that adoption of the initiative and referendum “caus[ed] the
State to cease to be a government republican in form” and “destroyed all government
republican in form in Oregon.”
Pacific States
,
In
Pacific States
, “all the petitioners asked the Court to determine was whether
the constitutional initiative was sufficiently republican.” George Theodore Phillips,
Thwarting Thrasymachus: A New Constitutional Paradigm for Direct Democracy &
Protecting Minority Rights
, 106 Geo. L.J. 1161, 1177 (2018). This is no broader than
the legal challenge raised here. Under the logic of
Pacific States
, the Plaintiffs’ claim
that TABOR is inconsistent with the Guarantee Clause equates to a claim that TABOR
renders the Colorado government non-republican in form. And under
Pacific States
,
that claim presents a political question, not within the reach of the judicial power.
See
In the wake of
Pacific States
, the Supreme Court has uniformly dismissed
Guarantee Clause claims as nonjusticiable. The same term
Pacific States
was decided,
the Court considered a Guarantee Clause challenge to two other amendments to the
Oregon Constitution that “authorized municipalities to . . . carry[] into effect the
initiative and referendum powers reserved by the amendment” at issue in
Pacific
States
.
See Kiernan v. City of Portland
,
By 1915, the notion that the Guarantee Clause was nonjusticiable was so clearly
established that the Court summarily dismissed such claims: “The attempt to invoke
[the Guarantee Clause] . . . is obviously futile[.]”
O’Neill v. Leamer
,
rights.”).
[2] Following the Court’s decision in
New York
, other circuit courts have
disposed of Guarantee Clause claims on both non-justiciability grounds and,
sometimes, on the merits after assuming justiciability.
See, e.g.
,
Deer Park Indep.
School Dist. v. Harris Cnty. Appraisal Dist.
,
But since the Court’s equivocation in
New York
, it has reaffirmed its holding in
Pacific States
on several occasions. For example, in
Arizona State Legislature v.
Arizona Independent Redistricting Commission
,
Despite such categorical language throughout Supreme Court case law, the Kerr I panel treated the Court’s dicta in New York as an invitation to do what the Court would not: decide what types of Guarantee Clause claims are justiciable. See 744 F.3d F.3d 581, 589 (7th Cir. 2020) (“The district court thus went too far in saying that no Guarantee Clause claim could proceed to adjudication on the merits. Instead, it should have decided simply whether this particular Guarantee Clause claim is among the rare ones that can survive a motion to dismiss. We conclude that it is not.”).
[3] Admittedly, the Court followed its reference to Pacific States with a “but see” signal to New York . But until the Court actually overrules Pacific States , it remains binding law.
at 1179. In doing so, the
Kerr I
panel interpreted
Baker v. Carr
,
B. Claims Seeking to Enforce a Republican Form of Government Lack a Judicially Manageable Standard
Even if the Supreme Court in Baker departed from its previous holdings that categorically barred Guarantee Clause claims, the Plaintiffs’ claims here are still nonjusticiable.
In Baker , the Court walked through the reasoning of its prior Guarantee Clause cases to derive the six factors that make up the test for justiciability. Id. at 211 (analyzing “representative cases and . . . infer[ring] from them the analytical threads that make up the political question doctrine”). These factors include (1) a textually demonstrable constitutional commitment of the issue to a coordinate political department; (2) a lack of judicially discoverable and manageable standards for resolving it; (3) whether the claim requires the court to make an initial policy determination of a kind clearly for nonjudicial discretion; (4) whether the claim can be resolved without expressing a lack of the respect due coordinate branches of government; (5) an unusual need for unquestioning adherence to a political decision already made; or (6) the potentiality of embarrassment from multifarious pronouncement by various departments on one question. Id. at 217. [4]
The
Kerr I
panel concluded that none of the six
Baker
factors were implicated
by the Plaintiffs’ Guarantee Clause claim.
The Kerr I panel did not expressly find any “judicially manageable standards,” but assured the readers that “[o]ur review of the record and briefing in this case satisfies us that judicially discoverable and manageable standards for Guarantee Clause litigation exist.” Id. at 1179. But if these standards exist, why are the Plaintiffs hiding the ball and why didn’t Kerr I show us the way? As far as I can tell, in the decade since the Plaintiffs filed this case, they have not suggested an appropriate standard that could guide federal courts. During oral argument, the Plaintiffs acknowledged that some form of direct democracy is acceptable, see Oral Argument at 19:00–25, but they have not told us how much, or how courts ought to assess whether the “too much” line has been crossed.
Scholars have tried to fill in these conceptual gaps. For instance, some have suggested the touchstone of the Guarantee Clause is “popular sovereignty.” See, e.g. , Jarret Zafran, Referees of Republicanism: How the Guarantee Clause Can Address State Political Lockup , 91 N.Y.U. L. Rev. 1418, 1446–47 (2016) (“[J]udicially manageable standards can be derived from the conception of the Clause focused on popular sovereignty, meaning that guarantee claims are justiciable per the Baker criteria.”). Under such an interpretation, the Clause includes an “implied guarantee of fair and open elections and a prohibition on structures that entrench the stаtus quo and limit popular control.” Id. And others have proposed that laws passed by direct democracy which did not involve “deliberation by representatives” violate the Guarantee Clause because it promises a Republican Form of Government. Hans Linde, Who is Responsible for Republican Government? , 65 U. Colo. L. Rev. 709, 722–24 (1994). [5]
But such attempts to read judicially manageable standards into the Guarantee Clause fail. While a focus on “popular sovereignty” may sound more familiar than a guarantee of a Republican Form of Government, shifting vocabulary does not mean the Guarantee Clause suddenly has a judicially manageable standard. It just kicks the can down the road. Decisions about whether a state’s practices for electing representatives are sufficiently “popular” are inherently political decisions. Accord Rucho , 139 S. Ct. at 2499 (“Unable to claim that the Constitution requires proportional representation outright, plaintiffs inevitably ask the courts to make their own political judgment about how much representation particular political parties deserve . . . . But federal courts are not equipped to apportion political power as a matter of fairness[.]”); see also Francesca Procaccini, Reconstructing State Republics , 89 Fordham L. Rev. 2157, 2227 (2021) (“[T]here is no principled interpretive methodology for determining the contemporary meaning and requirements of republican government that is divorced from baseline political assumptions.”). And it can’t be the case that the judicially manageable standard is whether a state law is the product of deliberation among representatives. The Guarantee Clause provides no indication of how much or what Clause may rule out a complete direct democracy, but none . . . credibly suggests a limited dose of direct democracy of the sort at issue here is constitutionally problematic.” (citing Robert Natelson, A Republic, Not a Democracy? Initiative, Referendum, and the Constitution’s Guarantee Clause , 80 Tex. L. Rev. 807, 811 n.19 (2002)); G. Edward White, Reading the Guarantee Clause , 65 U. Colo. L. Rev. 787, 803–06 (1994); Akhil Reed Amar, The Central Meaning of Republican Government: Popular Sovereignty, Majority Rule, and the Denominator Problem , 65 U. Colo. L. Rev. 749, 749–52, 761–73 (1994); Jonathan Toren, Protecting Republican Government from Itself: The Guarantee Clause of Article IV, Section 4 , 2 N.Y.U. J.L. & Liberty 371, 374–92, 392–99 (2007))).
form of deliberation would be required by state representatives to ensure a given
initiative or referendum does not run afoul of the Constitution. Moreover, the
Supreme Court has approved of various exercises of direct democracy on numerous
occasions.
See, e.g.
,
Ariz. State Legislature
,
Without any judicially manageable standard to offer, the Plaintiffs have at various points in litigation attempted to distinguish taxation as a core legislative function. Thus, according to the Plaintiffs, representative government cannot exist without the power to tax. Again, the Plaintiffs have not indicated how much the citizenry can supervise the state legislature’s taxing and spending power. The Plaintiffs seem to beliеve the federal courts can infer with Goldilocks-precision how much interference is “too much” and “just right.” And, even assuming a grain of truth in the Plaintiffs’ argument that taxing is a core legislative power (bearing in mind that the United States had no national income tax until 1913), assigning a role to the electorate in raising taxes and setting tax policy hardly changes a republican government into something akin to a monarchy. [6]
One would think a case in its second decade would have more. After all,
Colorado has been stuck in federal court under two governors, wasting litigation
resources along the way. As one of us said in an earlier review of the complaint,
“Federalism and comity appear to count for little when we condemn a state, its
governor, and its constitution to a multi-year scavenger hunt up and down the federal
court system looking for some judicially manageable standard that might permit us to
lawfully entertain the case in the first place.”
Kerr v. Hickenlooper
,
The Plaintiffs’ struggle to articulate a manageable standard should come as no surprise. No less a luminary than John Adams confessed he “never understood” what the Guarantee Clause meant and insisted that “no man ever did or will.” Letter from John Adams to Mercy Warren (July 20, 1807),
https://founders.archives.gov/documents/Adams/99-02-02-5195. [7]
If the Plaintiffs now expect us to develop a standard of our own, they are
barking up the wrong tree. Courts do not engage in an “amorphous general
supervision of the operations of government.”
Raines v. Byrd
,
Here, both the Constitution and the Enabling Act contain virtually identical guarantees to a Republican Form of Government. The Plaintiffs have made no effort to supply us with a judicially manageable standard to determine whether TABOR violates either the constitutional or statutory guarantees. Accordingly, I would find neither of the Plaintiffs’ claims to be justiciable under Baker .
Whatever the status of the current law on the justiciability of Guarantee Clause claims, we know Pacific States remains binding law. That case squarely forecloses the Plaintiffs’ claim that TABOR violates the Guarantee Clause’s promise of a Republican Form of Government. And even if Pacific States must be reinterpreted through the lens of Baker , the Plaintiffs have still failed to supply us with a judicially manageable standard we can apply to challenges of state action under the Guarantee Clause. If the Plaintiffs believe the door is still open to state a justiciable claim under the Guarantee Clause, that is an issue they should raise with the Supreme Court. Until then, I would find that we lack jurisdiction to consider the Plaintiffs’ claims on the merits.
II. The decision below should be converted to a dismissal with prejudice
Although the majority affirms and remands to the district court without prejudice, I would convert the dismissal below to one with prejudice. The district court considered the merits of the case, and we affirm on the merits. Thus, conversion to a dismissal with prejudice would enforce the practical effect of this ruling: Plaintiffs are prevented from refiling this case.
Judge Bacharach’s Concurrence contends that in this circuit, changing a
dismissal without prejudice to a dismissal with prejudice runs afoul of the cross-appeal
rule. Concurrence at 6 (citing
June v. Union Carbide Corp.
,
But if in Union Carbide our court viewed this road as blocked, the Supreme Court has since removed any barriers.
In
Morrison v. National Australia Bank Ltd.
, the Supreme Court needed to
decide whether § 10(b) of the Securities Exchange Act of 1934 provided a cause of
action to foreign plaintiffs for “misconduct in connection with securities traded on
foreign exchanges.”
The Supreme Court affirmed the dismissal of the plaintiff’s claims, but did so under Rule 12(b)(6) rather than Rule 12(b)(1). The Court explained that the extraterritorial reach of § 10(b) was a question going not to the Court’s jurisdiction, but to the merits of the case. Id. at 254 (“But to ask what conduct § 10(b) reaches is to ask what conduct § 10(b) prohibits, which is a merits question.”). Given this error, the plaintiff asked the Supreme Court to remand for the district court to reevaluate the complaint under Rule 12(b)(6). The Court concluded remand was “unnecessary.” Id. It reasoned that “[s]ince nothing in the analysis of the courts below turned on the mistake, a remand would only require a new Rule 12(b)(6) label for the same Rule 12(b)(1) conclusion.” Id. [8] Thus, the Court “proceed[ed] to address whether petitioners’ allegations state a claim.” Id. In doing so, the Supreme Court did not address the cross-appeal rule because it did not have to—it simply applied the correct terminology to match the substance of what the lower courts had already done. [9]
To remand when nothing turned on the district court’s mistake would be an exercise in futility—the district court would simply reapply the same legal analysis under the correct heading and reach the same result. Any purposes underlying the cross-appeal rule would not be advanced by applying the rule to situations like the one present in Morrison .
Consequently, the fact that dismissal under Rule 12(b)(1) is without prejudice
and we would consider the dismissal under Rule 12(b)(6) with prejudice is, in this
case, a distinction without a difference.
[10]
The district court answered the correct
merits question, just under the wrong heading. Though the district court styled its
dismissal as one without prejudice, it answered the merits question and thus dismissal
should have been with prejudice. Accordingly, there would be nothing amiss if we
were to correct this error because our dismissal with prejudice would have no practical
effect on the district court’s conclusion. In a similar fashion, we have previously
“[e]xercis[ed] our plenary power [to] treat the government’s [Rule 12(b)(1)] motion as
a motion for summary judgment.”
Redmon ex rel. Redmon v. United States
, 934 F.2d
1151, 1155 (10th Cir. 1991). And the Seventh Circuit, which applies a narrow rule,
has regularly modified dismissals for lack of jurisdiction to dismissals on the
merits—in other words, modification from dismissal without prejudice to dismissal
with prejudice.
See, e.g.
,
Matushkina
,
Conclusion Because I consider the Guarantee Clause question to be nonjusticiable, I would not reach the merits of this case. But the opinion of this court does decide the merits, and the district court did as well. Thus, this court should give the order the true effect of a dismissal on the merits. The case should be dismissed with prejudice.
Kerr v. Polis , No. 17-1192 BACHARACH , J., concurring, joined by McHUGH , J. and MORITZ , J., Circuit Judges.
I agree with the majority that
the district court erred in deciding that the political subdivisions lack standing,
we can consider whether to affirm the dismissal based on the failure to state a valid claim, and
the political subdivisions have not stated a valid claim. But I respectfully disagree with the disposition that Chief Judge Tymkovich proposes in his concurrence. [1] There he says that he would convert the dismissal from one without prejudice into one with prejudice even though the Governor did not cross-appeal.
As Chief Judge Tymkovich states, the cross-appeal rule applies
“when an appellate court alters a judgment to benefit the non-appealing
party.” Chief Judge Tymkovich’s Concurrence at 17 n.9 (citing
Greenlaw
v. United States,
The district court ordered dismissal for lack of jurisdiction, which
would ordinarily be without prejudice. Maj. Op. at 9;
see Brown v.
Buhman
,
Chief Judge Tymkovich contends that he wouldn’t be enlarging the judgment because the pleading defect couldn’t be cured even though the district court’s dismissal had been without prejudice. Chief Judge Tymkovich’s Concurrence at 17–19 & nn.9–10. This contention errs factually and legally.
In my view, Chief Judge Tymkovich errs factually by assuming that the political subdivisions couldn’t possibly remedy the pleading defect even if the dismissal remained without prejudice. Id. at 18 n.10. For this contention, Chief Judge Tymkovich states that “[n]either the text of the Constitution or the Colorado Enabling Act will change.” Id. But the political subdivisions could present legislative history if they refile because the majority takes no position on the availability of “extratextual sources to discern Congress’s intent.” Maj. Op. at 25 n.8.
Chief Judge Tymkovich states that the political subdivisions have already had a chance to present extratextual interpretive aids like legislative history. For the sake of argument, let’s credit this statement. But the dismissal without prejudice allows the political subdivisions to file a new action and present the district court with new evidence of legislative history.
The district court could then exercise its discretion to consider the newly submitted evidence of legislative history or decide that the submission is too late. Chief Judge Tymkovich would take this opportunity away from the political subdivisions by preventing them from even trying to present the district court with new evidence of legislative history. His proposed change in disposition would thus stymie the political subdivisions, barring them from refiling the suit and presenting new evidence of legislative history. [4]
Chief Judge Tymkovich’s approach also fails legally by relying on a
Seventh Circuit opinion:
Matushkina v. Nielsen
,
An example appears in
June v. Union Carbide Corp.
,
On appeal, the defendants argued that
a bodily injury constituted an element of the claim rather than a jurisdictional requirement and, as a result, the dismissal should have been with prejudice (rather than without prejudice).
Id. at 1248 n.8. Changing the dismissal from one without prejudice to one with prejudice would not have made a practical difference because the failure to allege a bodily injury would have torpedoed the claim either way. See id. (“[O]ur standard of appellate review of the bodily-injury issue would be the same in this case whether we treat the issue as a matter of jurisdiction or of the sufficiency of the evidence on summary judgment.”). (“Although neither party challenges our appellate jurisdiction, we have an independent duty to examine our own jurisdiction.”).
But the lack of a practical difference didn’t matter because the failure to
file a cross-appeal categorically prohibited us from changing the dismissal
into one with prejudice: “This rule [the cross-appeal rule] applies to
preclude an appellate court, in the absence of a cross-appeal, from
changing a dismissal without prejudice to a dismissal with prejudice.”
Id.
(quoting
Standard Inv. Chartered, Inc. v. Nat’l Ass’n of Sec. Dealers, Inc.
,
As an en banc court, we have the power to overrule any of our panel opinions. Chief Judge Tymkovich would wield this power here, “disagree[ing]” with June to the extent that it impedes conversion to a dismissal with prejudice. Id. at 17 n.9. In other words, June would apply except when it wouldn’t. By sua sponte converting the dismissal to one with prejudice, Chief Judge Tymkovich would
confuse our jurisdictional cross-appeal rule for future panels and practitioners and
modify the rule without briefing from the parties.
Defending this approach, Chief Judge Tymkovich suggests that the
Supreme Court has recognized jurisdiction to decide the merits when a
district court has dismissed the case for lack of jurisdiction. For this
suggestion, Chief Judge Tymkovich relies primarily on
Morrison v.
National Austl. Bank Ltd.
,
Chief Judge Tymkovich also points to a Tenth Circuit opinion and
two Seventh Circuit opinions:
Redmon ex rel. Redmon v. United States
, 934
F.2d 1151 (10th Cir. 1991),
Morfin v. Tillerson
,
With no cross-appeal, we lack jurisdiction to enlarge the judgment
for the Governor by changing the dismissal without prejudice to a
dismissal with prejudice. But there’s no need to change the disposition: the
Court has properly affirmed the dismissal as one without prejudice.
See
Orr v. Clements
,
Judge Briscoe questions the authority of a court to dismiss an action without prejudice under Rule 12(b)(6). Judge Briscoe’s Partial Concurrence & Partial Dissent at 17–18 n.8. But this authority comes from Rule 41(b) of the Federal Rules of Civil Procedure. This rule does two things:
1. It allows the court to dismiss an action or claim for failure to comply with the rules or an order.
2. It addresses the effect of various dismissals.
The first part of the rule doesn’t apply, but the second part does. It
states: “
Unless the dismissal order states otherwise
, a dismissal under this
subdivision (b) and
any dismissal not under this rule
—except one for lack
of jurisdiction, improper venue, or failure to join a party under Rule 19—
operates as an adjudication on the merits.” Fed. R. Civ. P. 41(b) (emphasis
added). By its terms, the second part of the rule addresses the effect of
various
other
dismissals, including those for failure to state a valid claim
under Rule 12(b)(6).
See Paganis v. Blonstein
,
For these dismissals, the second part of Rule 41(b) allows a court to
specify whether a dismissal is or isn’t “an adjudication on the merits.”
See
Fed. R. Civ. P. 41(b) (stating that dismissals operate “as an adjudication on
the merits” “[u]nless the dismissal order states otherwise”). “An
adjudication on the merits” is, simply, a dismissal with prejudice.
See
Semtek Int’l Inc. v. Lockheed Martin Corp.
,
Judge Briscoe also suggests that this “middle path” implicates the
cross-appeal rule. Judge Briscoe’s Partial Concurrence & Partial Dissent at
22. She invokes the Supreme Court’s observation that the rule applies to
“prevent lessening of the rights of the appellant.”
Id
. (citing
Jennings v.
Stephens
,
Judge Briscoe states that affirmance of the dismissal without prejudice erroneously “focuses only on the ultimate judgment while ignoring the substantive legal pronouncements that precede it.” Judge Briscoe’s Partial Concurrence & Partial Dissent at 23. But the cross-appeal rule requires us to focus on thе district court’s judgment rather than the reasoning behind it.
The Supreme Court addressed this issue in Jennings v. Stephens , 574 U.S. 271 (2015). There the Court considered whether a habeas petitioner had needed to file a cross-appeal to defend the judgment itself (a grant of habeas relief) based on a theory that the district court had rejected. Id. at 273–75. The State argued that the petitioner had needed to cross-appeal because he was seeking to diminish the State’s rights at the retrial. Id. at 277. The Supreme Court rejected this argument, reasoning that we consider the need for a cross-appeal based on the district court’s judgment rather than its reasoning: “A prevailing party seeks to enforce not a district court’s reasoning, but the court’s judgment . This Court, like all federal appellate courts, does not review lower courts’ opinions, but their judgments .” Id. at 277 (citation omitted; emphasis in original). The Court reasoned that the petitioner wasn’t trying to change the judgment itself (an order for the State to either release the petitioner, resentence him, or commute his sentence). Id. at 800. So he didn’t need to cross-appeal even though adoption of his appellate theory would allow him to pursue a habeas theory that the district court had rejected. Id. at 799–802.
The same is true here. The district court dismissed the action for lack of jurisdiction, which is treated as a dismissal without prejudice. Like the Supreme Court in Jennings , we consider the need for a cross-appeal based on the scope of the district court’s judgment rather than the reasoning behind it. The district court dismissed the action for lack of jurisdiction, which the majority has treated as a dismissal without prejudice. Affirming that dismissal without prejudice does not expand or diminish any party’s rights from the judgment itself. So no cross-appeal is needed for us to affirm the dismissal as one without prejudice—just as no cross-appeal was needed in Jennings to affirm the habeas judgment based on a theory that the district court had rejected.
* * *
In my view, the majority properly characterizes the restriction on claims by political subdivisions. But we need not change the dismissal without prejudice to one with prejudice. Dismissals under Rule 12(b)(6) can be without prejudice. So the majority easily avoids the cross-appeal rule by leaving the dismissal as one without prejudice.
Chief Judge Tymkovich would ignore the cross-appeal rule, reasoning that the change in disposition makes no practical difference. This approach would muddy our precedent: The change made no practical difference in June v. Union Carbide , and we held there that the cross- appeal rule prevented us from changing the dismissal without prejudice to one with prejudice. Chief Judge Tymkovich cites June but then questions its conclusion, taking an approach that would confuse future panels and litigants. The majority properly resists that approach, leaving our precedent intact by affirming and leaving the dismissal without prejudice. No. 17-1192, Kerr v. Polis
BRISCOE , Circuit Judge, concurring in part and dissenting in part, joinеd by PHILLIPS , Circuit Judge.
I agree with the majority that the limitation on political subdivision suits against a parent state (what we used to call “political subdivision standing”) is not a threshold jurisdictional inquiry. Instead, this limitation is a merits analysis that looks to whether a constitutional or statutory provision allows a subdivision to bring a claim against its parent state. Accordingly, the district court erred in considering that issue on a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, and we should reverse that ruling and remand for further proceedings.
And that should end the story. This is an appeal from the district court’s dismissal for lack of jurisdiction . The majority, however, sees that as irrelevant and goes beyond the district court’s ruling by dismissing the plaintiffs’ complaint on the merits . In its view, we are “required” to convert the motion the Governor did file into one he did not, consequently hold the plaintiffs to a standard that has not yet been applied to them, and then simply “correct” the district court’s judgment because, the majority declares, after ten years “the day has come to affirm the dismissal of the complaint.” Maj. Op. at 6, 27– 28. To smooth over this metamorphosis, the majority styles its opinion as affirming on “alternate grounds,” rather than describing its work for what it is: a reversal on alternative grounds. [1] Maj. Op. at 5, 12–13, 26–29.
The majority’s resolution flies in the face of the cross-appeal rule, which states
that we may not enlarge the rights of a non-appealing party nor shrink the rights of the
appealing party without a cross-appeal.
Jennings v. Stephens
,
Yet the majority decides these issues for the district court. In doing so, the
majority gives the Governor more than he asked for and leaves the plaintiffs with
nothing—no live case, and no viable path towards refiling. While the majority views its
ruling as compliant with the cross-appeal rule, the reality is to the contrary. The Governor
greatly benefits from the majority’s reading of the applicable case law, while the
findings to which we defer or uncontested facts, our decision would involve only
questions of law.”
Elkins v. Comfort
,
plaintiffs are left with a merits dismissal without prejudice rather than a ruling to reverse and remand for further proceedings.
In the majority’s efforts to dispose of this case once and for all, it violates the cross-appeal rule, ignores the key role played by the parties’ participation in their own litigation, and flouts our role as a court of review. The majority today transforms this case from a Rule 12(b)(1) dismissal for lack of standing to a Rule 12(b)(6) dismissal on the merits . To that end, the majority announces “the proper framework for determining whether a political subdivision has stated a viable claim against its parent state,” then proceeds to apply that analytical framework to this case as it presently stands without affording the plaintiffs the opportunity to meet these newly minted standards in a Rule 12(b)(6) context, and given their lack of opportunity to meet these new Rule 12(b)(6) standards, finds the plaintiffs’ arguments wanting. Maj. Op. at 12. I respectfully dissent, both from the majority’s conclusion of what the political subdivision limitation inquiry entails, and from its decision to dismiss the complaint. Because we conclude that the political subdivisions here do have Article III standing to challenge TABOR—the only inquiry that matters on review of this Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction—I would reverse the district court’s Rule 12(b)(1) ruling and remand.
I
I will begin with where the majority gets it right. The majority correctly holds that
the political subdivision plaintiffs have Article III standing, and that our political
subdivision “standing” doctrine is not jurisdictional and therefore not properly considered
on a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. The Supreme
Court made clear in
Lexmark
“that courts err by characterizing as a question of ‘standing’
the issue of whether a particular litigant is authorized to bring a substantive claim under a
statute.”
United States v. Wells
,
II
But that is where I part ways with the majority. In my view, our decision in
City of
Hugo v. Nichols (Two Cases)
,
The Supreme Court has only expressly prohibited a political subdivision from
suing its parent state for violations of three constitutional provisions: (1) the Cоntracts
Clause,
City of Trenton v. State of New Jersey
,
But the Supreme Court has since backed away from that sweeping prohibition. In
Gomillion v. Lightfoot
, the Supreme Court cautioned that
Trenton
and
Williams
should be
read only to reach “the particular prohibitions of the Constitution considered in those
cases,” i.e., the Contracts, Due Process, and Equal Protection Clauses.
The majority ignores that limiting directive and instead adopts, with very little
analysis, the standard formulated in
City of Hugo
—a decision which effectively
foreclosed
all
constitutional challenges that a subdivision might bring against their parent
state. In that case, a panel of this court, over a strong dissent, extended the limitation on
constitutional challenges to the dormant Commerce Clause.
See
I question each of those premises. As for the first, just because the Supreme Court
has expressly prohibited political subdivisions from relying on certain constitutional
provisions does not mean the Court intends to prohibit reliance on all constitutional
provisions.
See Edwards v. Vannoy
,
Relatedly, as regards the second premise, I am reluctant to totally prohibit a
subdivision from bringing a constitutional challenge against its parent state in the absence
of close examination of the issue by the Supreme Court.
Ysursa
, the case that allegedly
resurrected the total bar on constitutional challenges, was a case about union dues, not
about the rights of political subdivisions. The Court only invoked the sweeping dicta
from
Trenton
and
Williams
to reject an argument that the relationship between a state and
a political subdivision was like that between a state regulator and a private utility
company.
Ysursa
,
Ultimately, however, between the limiting directive from
Gomillion
and the
sweeping prohibition from
Ysursa
, it appears that we have dicta from the Supreme Court
pointing in two different directions. But given that the Supreme Court has neither
recently nor thoroughly considered the types of constitutional challenges a political
subdivision may bring against its parent state, I would follow the narrower dicta that
speaks to the sweep of the Court’s holdings, rather than the dicta invoked to reject an
analogy in an inapposite context. Accordingly, I would adhere only to the Supreme
Court’s (and our court’s) actual holdings: political subdivisions cannot sue their parent
states based on violations of the Contracts Clause, the Due Process or Equal Protection
Clauses of the Fourteenth Amendment, or the dormant Commerce Clause.
[2]
I see no need to determine whether the Guarantee Clause should be added to that
list. As the majority notes, the subdivision plaintiffs have all but abandoned their claim
under that provision of the Constitution. Maj. Op. at 31 (“Faced with near-certain failure
on their Guarantee Clause claim, the Plaintiffs place most of their eggs in the Enabling
Act basket on appeal.”). In the section of their supplemental en banc brief regarding
political subdivision “standing,” the plaintiffs focus only on their Enabling Act claim.
See
Aplt. Supp. Br. at 10 (“The political subdivision plaintiffs have standing to pursue their
claims under the Enabling Act . . . .”);
id.
at 16 (“The Enabling Act through the
Supremacy Clause controls.”). Accordingly, I would deem the plaintiffs’ constitutional
claims under the Guarantee Clause waived.
Adler v. Wal-Mart Stores, Inc.
,
B. Statutory Claims
Continuing its analysis, the majority substantially narrows a political subdivision’s
ability to rely on a federal statute in a suit against its parent state. Adopting the standard
from
City of Hugo
, the majority holds that a federal statute must be “directed at
protecting” political subdivisions. And, in its view, a statute is only “directed at
protecting” political subdivisions if the statute specifically provides rights to political
subdivisions. Maj. Op. at 22 (“[W]e must determine whether Congress specifically
intended to create a cause of action for political subdivisions.”). This requirement, the
majority insists, ensures that “Congress has specifically weighed the federalism
implications of a given statute and determined political subdivisions have a particular
interest in enforcing the law.”
Id.
at 24–25. In essence then, the majority adopts a “plain
statement” rule—familiar from Supreme Court cases where the federal-state balance is at
issue,
see, e.g.
,
United States v. Bass
,
To reach this conclusion however, the majority does substantial surgery to our
political subdivision limitation doctrine. This court has issued three key decisions
exploring the contours of the political subdivision limitation, each building upon the
other:
Hous. Auth. of Kaw Tribe of Indians of Okla. v. City of Ponca City
,
In
Kaw Tribe
, we held that a tribal housing authority established under Oklahoma
law could not sue a fellow political subdivision
[4]
under the Fourteenth Amendment,
following the prohibition on such challenges established by the Supreme Court in
Trenton
and
Williams
.
The next case to develop the political subdivision limitation was
Branson
. At issue
there was a provision of the Colorado Enabling Act that “granted more than 4.6 million
acres of school lands to the state of Colorado for the support of the ‘common schools.’”
Fast forward to the next case,
City of Hugo
, which placed a new gloss on the
limitation. There, we said that “in each case” where a subdivision could sue its parent
state, “the source of substantive rights was a federal statute
directed at protecting
political subdivisions . . . .”
With that review of all the relevant cases in mind, the “directed at protecting” requirement must have a broader and more flexible scope than the majority gives it, particularly if the majority is relying on City of Hugo and the precedent it rests upon to get there. But the majority doеs not want to follow this precedent; it wants to end this case today. So, the majority converts a Rule 12(b)(1) motion into a Rule 12(b)(6) motion upon rehearing en banc. It then concludes from plaintiffs’ failure to fully brief a response to a Rule 12(b)(6) motion that plaintiffs must not have the kind of interpretive aids Kaw Tribe allows us to consider.
I am puzzled how we can fault the plaintiffs at this juncture, as does the majority, for failing to cite pertinent legislative history when the parties have not had the opportunity to address that issue in the context of a Rule 12(b)(6) motion. To recall, and as the majority fully explains, the focus of this litigation since its 2011 inception has been to determine who has standing to bring an action to seek injunctive and declaratory relief from TABOR. Maj. Op. at 7–10. The majority today concludes standing is intertwined with the merits and if analyzed under the framework the majority now announces the plaintiffs have failed to state a claim and the action is dismissed without prejudice under Rule 12(b)(6). [6] That is quite a leap from where the parties started and from the district court’s ruling presently under review. While we may believe we are capable of functioning in a dual role to both identify and then resolve the issues identified, I for one continue to rely on the adversarial process to identify and refine the legal issues before ruling on them.
I would harmonize all our precedent and give the “directed at protecting”
requirement the broad and flexible scope that our cases ascribe to it. Accordingly, in my
view, a statute may be “directed at protecting” political subdivisions even if the language
of the statute does not specifically provide rights to them, so long as there is some other
evidence that Congress contemplated protecting political subdivisions.
See Kaw Tribe
,
This more flexible understanding of the “directed at protecting” requirement falls
between two points: it is less demanding than the majority’s “specifically providing rights
to” formulation but requires morе than the subdivision plaintiffs’ requested zone-of-
interests test, which merely asks whether the plaintiff “is arguably within the zone of
interests to be protected . . . by the statute . . . in question.”
Ass’n of Data Processing
Serv. Orgs., Inc. v. Camp
,
The district court’s analysis in this case focused on the “specifically providing
rights to” formulation from
City of Hugo
, which, as should be clear by now, is
simultaneously too narrow and inconsistent with existing circuit precedent.
See Kerr v.
Hickenlooper
,
III
Which brings me to the majority’s resolution of this case. I believe it is improper
to proceed to consider the merits of this case. The only motion that has been filed in this
case is a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, and it is a
ruling on that motion that we are reviewing. No matter, says the majority. We can simply
convert the Rule 12(b)(1) dismissal into a Rule 12(b)(6) dismissal and dismiss the
complaint on the merits. Not only does this move violate the cross-appeal rule, a “firmly
entrenched” rule of appellate practice,
Greenlaw v. United States
,
It is well-settled that under the cross-appeal rule, “an appellee who does not cross-
appeal may not ‘attack the decree with a view either to enlarging his own rights
thereunder or of lessening the rights of his adversary.’”
Jennings
,
As Judge Bacharach correctly notes, converting a dismissal without prejudice into one with prejudice would enlarge the district court’s judgment. [9] It would lessen the rights states in full: “If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise , a dismissal under this subdivision (b) and any dismissal not under this rule—except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19—operates as an adjudication on the merits.” (emphasis added).
We are not here on a Rule 41(b) motion, nor does it apply. We need not now
provide a default label for the district court’s ruling. The district court specified that its
dismissal was for lack of subject matter jurisdiction, an exception to Rule 41(b)’s
presumption of a merits adjudication. As stated by then-Judge Kavanaugh, “a
district
court
has discretion to dismiss a complaint without prejudice.”
Rollins v. Wackenhut
Servs., Inc.
,
[9] As the Chief Judge’s concurrence recognizes, a Rule 12(b)(1) dismissal is
typically without prejudice and allows a party to return to the same court and attempt to
cure the jurisdictional defect.
Semtek Int’l Inc. v. Lockheed Martin Corp.
,
The Chief Judge’s concurrence dismisses the cross-appeal rule, saying it simply
does not apply in this case. But its reasons for doing so are unconvincing. To start, “in
more than two centuries of repeatedly endorsing the cross-appeal requirement, not a
single one of [the Supreme Court’s] holdings has ever recognized an exception to the
rule.”
Greenlaw
,
At any rate, in a different line of cases, the Seventh Circuit has held fast to the
cross-appeal rule. Most notably, in
Lee v. City of Chicago
,
Other circuits have followed the same path by affording respect to the cross-appeal
rule.
See, e.g.
,
Delgado-Caraballo v. Hosp. Pavia Hato Rey, Inc.
,
While conversion of a dismissal without prejudice into one with prejudice clearly
defies the cross-appeal rule, even the middle path now charted by the majority and Judge
Bacharach’s concurrence implicates the rule. The cross-appeal rule does not apply only to
prevent enlargement of judgments in favor of the appellee—it also applies to prevent
lessening the rights of the appellant.
See Jennings
,
The majority’s approach clearly lessens the plaintiffs’ rights and increases their burden in any subsequent litigation. If the majority held that the district court erred in determining that political subdivision standing was a jurisdictional bar, stopped its analysis there, and remanded to the district court for reconsideration, the plaintiffs would be left at least with a live case and the opportunity to brief these merits issues to the district court. By going further than necessary, the majority deprives the plaintiffs of all the benefits of a pending, open case and leaves them and others like them with precedent that makes it almost impossible to bring a claim under the Guarantee Clause or the Colorado Enabling Act.
Judge Bacharach suggests that the Chief Judge’s approach would “stymie the
political subdivisions, barring them from refiling the suit and presenting new evidence of
legislative history.” Bacharach Op. at 3–4. Yet they fare no better under the approach
Judge Bacharach endorses because the majority opinion creates an all but insurmountable
burden to their prevailing on the merits.
[10]
In fact, after authoring the same merits analysis
which Judge Bacharach joins, the Chief Judge notes in concurrence that expanding the
dismissal to one with prejudice would have the same practical effect as leaving the
dismissal withоut prejudice. Chief Judge Tymkovich’s Concurrence at 18. If expanding
the judgment makes no practical difference, then either both courses violate the cross-
appeal rule or neither do. Judge Bacharach mischaracterizes the cross-appeal rule as
requiring only that we do not expand the “disposition” of the case. Bacharach Op. at 11.
But that view focuses only on the ultimate judgment while ignoring the substantive legal
pronouncements that precede it and will bind the parties in any future litigation.
Moreover, his opinion reads too much into
Jennings
, a habeas case with key differences
from this one. There, the alternative argument was actually presented to the district court.
See Jennings
,
Ultimately, though, how closely we adhere to the cross-appeal rule runs a close
second to my larger objection to the majority’s decision to usurp the district court’s
authority and become the first court to consider this case on the merits. We are “a court of
review, not of first view.”
Childers v. Crow
,
We are here in this en banc proceeding because the parties and members of this
court have acknowledged that our political subdivision limitation doctrine is unclear.
See
Kerr III
,
IV
As regards the political question doctrine, this is another issue not addressed by
the district court.
[11]
I disagree with the Chief Judge’s suggestion of resolving this case on
political question grounds. For one, as stated above, I conclude the plaintiffs waived their
claims under the Guarantee Clause of the Constitution, so it is unnecessary to determine
whether claims under that provision are non-justiciable. For another, the whole purpose
of this en banc proceeding was to clarify the political subdivision “standing” doctrine, not
reconsider a prior panel’s conclusion that the plaintiffs’ claims are justiciable.
See Kerr v.
Hickenlooper
,
Most importantly, the political question issue was not “presented” to us in any
meaningful sense of the word. At no point in the instant proceedings on review did the
Governor raise the political question doctrine. He certainly had the opportunity to do so.
[13]
Normally, “when a party chooses not to pursue a legal theory potentially available to it,
we generally take the view that it is ‘inappropriate’ to pursue that theory in our opinions.”
Hydro Res., Inc. v. EPA
,
That is a mistake.
Our adversarial system endows the parties with the opportunity—and duty—to craft their own legal theories for relief in the district court. It is the significant but limited job of our appellate system to correct errors made by the district court in assessing the legal theories presented to it, not to serve as a second-shot forum . . . where secondary, back-up theories may be mounted for the first time.
Richison v. Ernest Grp., Inc.
,
What is more, in the nearly one hundred and fifty pages of briefing filed in this
appeal and en banc rehearing, there is only a single page from the Governor and a page
and a half in response from the plaintiffs on the political question doctrine, mostly
quibbling about whether a comment in
Rucho v. Common Cause
,
To respect the parties’ control of their own case and to ensure that any decision we render is the product of adversarial refinement, I would confine our analysis to the issues the parties have focused on, not issues newly raised by the court sua sponte.
V
I concur in ruling that the district court erred in dismissing this case under Rule 12(b)(1) for lack of subject matter jurisdiction. I respectfully dissent from our converting the Governor’s motion to a Rule 12(b)(6) motion and dismissing this case on the merits. I also would not convert the dismissal without prejudice into one with prejudice, nor would I sua sponte raise the political question doctrine. I would reverse the district court’s Rule 12(b)(1) ruling and remand for further proceedings.
Notes
[1] Chief Judge Tymkovich and Judges Hartz, Holmes, Bacharach, McHugh, Moritz, and Eid join the opinion of the court and affirm the dismissal below without prejudice. Judge Briscoe, joined by Judge Phillips, dissents and would reverse the dismissal below and remand. Chief Judge Tymkovich, joined by Judges Hartz, Holmes, and Eid, concurs with the opinion of the court but also would convert the dismissal below to one with prejudice. Chief Judge Tymkovich, joined by Judges Hartz and Eid, would further conclude that the Plaintiffs’ claim was nonjusticiable under the political question doctrine. Judge Bacharach, joined by Judges McHugh and Moritz, concurs, explaining why the court affirmed without prejudice.
[2] The Governor raises another jurisdictional issue: whether the Plaintiffs’
claims are nonjusticiable political questions. Usually, we must address jurisdictional
issues before addressing the merits of a case. But both we and the Supreme Court
have treated justiciability as an exception to that general rule.
See New York v. United
States
,
[3] In supplemental briefing, both parties endorsed this understanding of the inquiry.
[4] While the reason for inquiring into what law authorizes a political subdivision to sue its parent state has changed—addressing whether the plaintiff has a cause of action rather than whether we have jurisdiction—the actual substance of the inquiry has not. Hugo , though addressed to subject-matter jurisdiction, correctly captured the essential question that needs answering in these cases: does the political subdivision have a cause of action?
[5] According to Judge Briscoe’s Dissent, we ought to limit the rule to those
constitutional provisions expressly ruled on by the Supreme Court and this court.
Judge Briscoe’s Dissent argues that a general rule prohibiting suits by political
subdivisions against their parent states based on substantive constitutional provisions
goes too far. In adopting the rule stated by this court in
Hugo
, we are not indulging
unreasoned dicta. The Supreme Court has explained on multiple occasions why
substantive constitutional claims by a political subdivision against its parent state
cannot stand.
See, e.g.
,
Hunter v. City of Pittsburgh
,
[7] The Plaintiffs suggest
Clinton v. New York
,
[8] In adopting this two-step test from
Hugo
, we take no position on whether at
the second step of the test we may look only at the text of the relevant federal statute
or whether we can look to extratextual sources to discern Congress’s intent. The
Supreme Court itself seems to have avoided taking a clear position on this in the
plain-statement context.
Compare Will
,
[9] The Plaintiffs contend the suit should be able to proceed because “the merits
phase of this case can add [value] in determining both what a republican form of
government consists of and who may claim its benefits.” Resp’t Suppl. Answer Br. at
9. But the Plaintiffs have given us no indication of what additional information might
become available and why that information was not available to them in crafting their
complaint. We see no reason to remand for further fact-finding or let the case proceed
when the Plaintiffs have been given every opportunity to advance the requisite claims
to establish a cause of action. They have offered only vague legal conclusions about
the guarantee of a Republican Form of Government being for political subdivisions.
We will not credit these.
See Iqbal
,
[10] In their reply brief before the panel, the Plaintiffs offered that “[i]n their case
on the merits, [they] will offer extensive historical evidence of and legal proof for the
proper meaning of the Guarantee Clause and ‘Republican Form of Government’[.]”
Aplt. Reply Br. at 25, n.15. But Plaintiffs fail to explain why they have neglected to
bring such historical information now, when they knew it could be pertinent to their
ability to proceed.
See Kaw Tribe
,
[11] Judge Briscoe’s Dissent contends we need not even reach this argument because the Plaintiffs have waived their constitutional claim under the Guarantee Clause. But the Plaintiffs did not waive this claim. They clearly invoked the Guarantee Clause in the first page of their supplemental answer brief: “Plaintiffs have sued to enforce the guarantees of the a Republican Form of Government afforded to them under the Guarantee Clause . . . and a similar provision in the Colorado Statehood Enabling Act.” Resp’t Suppl. Answer Br. at 1 (emphasis added; internal citations omitted). And they went on to invoke the Guarantee Clause repeatedly throughout their briefing and relied on it as to authorize their suit against the state. See, e.g. , id. at 8 (“[T]he Guarantee Clause provide[s] for a republican form of government that entails a structural and interdependent relationship between state government and political subdivisions, both with the inherent authority to raise and
[1] This practice has continued to the present day; indeed, since 1912, the Court
has never found a Guarantee Clause claim to be justiciable.
See, e.g.
,
Mountain
Timber Co. v. State of Washington
,
[4] It is worth noting that the
Baker
Court determined factor two was implicated
in
Luther
’s holding “that the Guaranty Clause is not a repository of judicially
manageable standards which a court could utilize independently in order to identify a
State’s lawful government.”
[5] Even if a judicially manageable standard can be discerned from scholarship
on the Guarantеe Clause, none of this scholarship supports the Plaintiffs’ position.
See Kerr v. Hickenlooper
,
[6] Colorado voters have approved numerous state and local tax measures involving taxing and spending since 1992, so TABOR has not been an insuperable barrier to voter approval of consensus-driven proposals.
[7] Adams went on to opine that “[t]he word [Republican] is so loose and indefinite that successive predominant factions will put glosses and constructions upon it as different as light and darkness.” Id.
[8] In such instances, the appellate court is not enlarging the rights of the defendant. To enlarge the rights of the defendant, an appellate court’s decision would have to change the ultimate outcome in favor of the defendant. But whether the same question is answered (improperly) under the heading of Rule 12(b)(1) or (properly) under Rule 12(b)(6), the ultimate outcome of the case remains the same: the plaintiffs cannot bring their claim.
[9] Judge Bacharach’s Concurrence insists that in
Morrison
the Supreme Court
did not open up any paths through the cross-appeal rule. Concurrence at 6–7. Again,
it did not need to. The cross-appeal rule is implicated only when an appellate court
alters a judgment to benefit the non-appealing party.
See Greenlaw
,
[10] “When a federal court rules that a dismissal is with prejudice, it is saying
only that the claim cannot be refiled in that court.”
Styskal v. Weld Cnty. Bd. of Cnty.
Com’rs
,
[1] In writing for the majority, Chief Judge Tymkovich affirms the dismissal without prejudice. In his concurrence, however, he states that he would change the disposition to a dismissal with prejudice.
[2] As Judge Briscoe observes, this benefit may come from either
enlarging the benefit to the appellee or
lessening the rights of the appellant.
Judge Briscoe’s Partial Concurrence & Partial Dissent at 22 (citing
Jennings v. Stephens
,
[3] A majority of the en banc court agrees. See Judge Briscoe’s Partial Concurrence & Partial Dissent at 18–22.
[4] Judge Briscoe concludes that “the majority opinion creates an all but insurmountable burden to [the political subdivisions’] prevailing on the merits.” Judge Briscoe’s Partial Concurrence & Partial Dissent at 23. For this conclusion, Judge Briscoe points to Chief Judge Tymkovich’s concurrence, which views the dismissal without prejudice as the practical equivalent of a dismissal with prejudice. Id. There, however, Chief Judge Tymkovich reasoned that the text of the Constitution and Rules Enabling Act won’t change. Chief Judge Tymkovich’s Concurrence at 18 n.10. Judge Briscoe elsewhere acknowledges that the political subdivisions can refile and submit legislative history showing congressional intent to protect political subdivisions. Judge Briscoe’s Partial Concurrence & Partial Dissent at 23 n.10. Given this opportunity to cure the defect, the dismissal without prejudice does not create an “insurmountable burden to [the political subdivisions’] prevailing on the merits.” Id. at 23.
[5] The political subdivisions did not question our jurisdiction to affirm
under Rule 12(b)(6). But we must ensure our own jurisdiction.
See, e.g.
,
Amazon, Inc. v. Dirt Camp, Inc.
,
[6] Chief Judge Tymkovich states that there was no cross-appeal in
Morrison
, citing the Second Circuit’s opinion. Chief Judge Tymkovich’s
Concurrence at 17 n.9. But the Second Circuit’s opinion never said whether
a cross-appeal had been filed.
See generally Morrison v. Nat’l Austl. Bank
Ltd.
,
[7] Judge Briscoe suggests that this rule allows only the district court (rather than our court) to specify that the dismissal is without prejudice. Judge Briscoe’s Partial Concurrence & Partial Dissent at 17–18 n.8. I agree. But here the district court itself specified that the dismissal was for lack of jurisdiction, which—by definition—is a dismissal without prejudice. So affirmance does not change the nature of the dismissal. The existing dismissal remains one without prejudice.
[8] Indeed, we have required some dismissals under Rule 12(b)(6) to be
without prejudice, such as those for prematurity under
Heck v. Humphrey
,
[9] Chief Judge Tymkovich states that I agree that we are adjudicating
the substance of the claim. Chief Judge Tymkovich’s Concurrence at 18
n.10. But adjudication of the
substance
of a claim differs from adjudication
of the
merits
. We often loosely say that a ruling is “on the merits” when it
addresses the substance of a claim.
Semtek Int’l Inc. v. Lockheed Martin
Corp.
,
[1] We have discretion to affirm on alternative grounds if three conditions are met: (1) if “the ground was fully briefed and argued here and below”; (2) if “the parties have had a ‘fair opportunity to develop the [factual] record’”; and (3) if, “in light of factual
[2] Although I disagree with how broadly City of Hugo spoke about constitutional challenges, I see no need to disregard that case’s actual holding.
[3] The majority unabashedly faults the plaintiffs for not briefing this issue to the district court, on initial panel hearing, or to the en banc court, but the suggestion of converting the Governor’s Rule 12(b)(1) motion to a Rule 12(b)(6) motion was not raised until oral argument of the en banc case. See Oral Argument at 53:35, Kerr v. Polis (No. 17-1192) (en banc). I would suggest this shift in theory comes too late to provide the parties notice or an opportunity to be heard. Further, by this approach, we leave the district court totally out of the equation.
[4] That the housing authority brought a suit against a fellow subdivision rather than
its parent state did not impact the analysis.
Kaw Tribe
,
[5] For what it is worth, this standard addressing which statutory claims a political
subdivision may pursue against its parent state was unnecessary to the holding and
therefore dicta. As we pointed out in the panel decision below, “
City of Hugo
’s analysis
focused on whether substantive constitutional rights can be the basis for political
subdivision standing and did not itself engage in any statutory analysis.”
Kerr v. Polis
,
[6] The majority also cites
Holt v. United States
,
[7] Strangely, the majority holds this omission against the plaintiffs while excusing the Governor’s omission of any argument to the district court that plaintiffs’ complaint fails to state a claim.
[8] To state the obvious, Judge Bacharach and I agree on this point. But I find no support in any similar case from this circuit where we have adopted the hybrid approach that he and the majority take: to momentarily set aside the cross-appeal rule and convert a Rule 12(b)(1) motion to dismiss into a Rule 12(b)(6) motion to dismiss, then dismiss without prejudice. The cases cited in support of dismissal under Rule 12(b)(6) without prejudice are limited to claims that are premature, unexhausted, or unripe. Further, we should not now insert Rule 41(b) into the conversation as it has no applicability here. Nor, for that matter, has any party argued that it applies. Rule 41(b)
[10] To be clear, I would in no way restrict the evidence plaintiffs could present should they refile an action.
[11] “A well known riddle asks: ‘Where does an eight-hundred pound gorilla sleep?’ The response is: ‘Anywhere it wants.’ The judicial application of this rule would be: ‘When will an appellate court consider a new issue?’ The response is: ‘Any time it wants.’” Robert J. Martineau, Considering New Issues on Appeal: The General Rule and the Gorilla Rule , 40 Vand. L. Rev. 1023, 1023 n.a (1987) (internal citation omitted).
[12] And for what it is worth, I stand by the unanimous panel opinion in
Kerr I
that I
joined. In seeking to overturn that decision’s сonclusion on the political question
doctrine, the concurrence literally re-writes the Supreme Court’s decision in
Pacific
States
to say what the concurrence wants it to say.
See
Chief Judge Tymkovich’s
Concurrence at 3–5. Citing only to a law review article and a student note opining on
what
Pacific States
was “actually” about, the concurrence says that
Pacific States
dealt
with the exact situation as this case and therefore that its declaration that all Guarantee
Clause challenges are non-justiciable applies. But as we concluded in
Kerr I
, the
challenge in
Pacific States
involved a “wholesale attack[] on the validity of a state’s
government rather than, as before us, a challenge to a single provision of a state
constitution.”
Kerr I
,
[13] The Kerr II panel, after reversing Kerr I ’s standing determination for the legislator plaintiffs, declined to reconsider its conclusion on the political question doctrine. But in remanding to the district court to consider whether any plaintiff had standing, the Kerr II panel instructed that the district court “may . . . consider [whether any] other justiciability hurdles” remained if it found that any plaintiff had standing. Kerr v. Hickenlooper ,824 F.3d 1207 , 1217 (10th Cir. 2016) ( Kerr II ). On remand, the Governor did not present any argument on such justiciability hurdles like the political question theory. He argued only that the non-legislator plaintiffs lacked standing—the issue on appeal in Kerr III and this en banc proceeding.
[14] Of note, our en banc briefing order focused only on the political subdivision “standing” doctrine, not the political question doctrine. Although the order was the product of the en banc court, no member of the en banc court identified the political question doctrine as relevant to this appeal or requiring supplemental briefing. Instead, our order asked the parties to file supplemental briefs answering two questions (with three sub-questions each) focused on subdivision “standing” in no more than twenty pages. The Governor’s choice to toss in a single page regarding the political question doctrine short-circuited the adversarial process. It forced the plaintiffs to briefly respond in addition to answering all the other questions from the en banc order.