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Kerr v. Polis

United States Court of Appeals, Tenth Circuit

July 22, 2019

ANDY KERR, Colorado State Representative; NORMA V. ANDERSON; JANE M. BARNES, member Jefferson County Board of Education; ELAINE GANTZ BERMAN, member State Board of Education; ALEXANDER E. BRACKEN; WILLIAM K. BREGAR, member Pueblo District 70 Board of Education; BOB BRIGGS, Westminster City Councilman; BRUCE W. BRODERINS, member Weld County District 6 Board of Education; TRUDY B. BROWN; JOHN C. BUECHNER, Ph.D., Lafayette City Councilman; STEPHEN A. BURKHOLDER; RICHARD L. BYYNY, M.D.; LOIS COURT, Colorado State Representative; THERESA L. CRATER; ROBIN CROSSAN, member Steamboat Springs RE-2 Board of Education; RICHARD E. FERDINANDSEN; STEPHANIE GARCIA, member Pueblo City Board of Education; KRISTI HARGROVE; DICKEY LEE HULLINGHORST, Colorado State Representative; NANCY JACKSON, Arapahoe County Commissioner; CLAIRE LEVY, Colorado State Representative; MARGARET MARKERT, Aurora City Councilwoman, a/k/a Molly Markert; MEGAN J. MASTEN; MICHAEL MERRIFIELD; MARCELLA L. MORRISON, a/k/a Marcy L. Morrison; JOHN P. MORSE, Colorado State Senator; PAT NOONAN; BEN PEARLMAN, Boulder County Commissioner; WALLACE PULLIAM; FRANK WEDDIG, Arapahoe County Commissioner; PAUL WEISSMANN; JOSEPH W. WHITE; CHEYENNE WELLS RE-5 SCHOOL DISTRICT BOARD OF EDUCATION; SUSAN LONTINE; DENVER COUNTY PUBLIC SCHOOLS BOARD OF EDUCATION; K.C. BECKER; BOARD OF COUNTY COMMISSIONERS OF BOULDER COUNTY; BOULDER VALLEY SCHOOL DISTRICT RE-2 BOARD OF EDUCATION; GUNNISON COUNTY METROPOLITAN RECREATION DISTRICT; LESLIE HEROD; PUEBLO CITY DISTRICT 60 BOARD OF EDUCATION; CHRISTOPHER J. HANSEN; GUNNISON WATERSHED RE-IJ SCHOOL DISTRICT BOARD OF EDUCATION; COLORADO SPRINGS DISTRICT 11 BOARD OF EDUCATION; POUDRE SCHOOL DISTRICT BOARD OF EDUCATION; PUEBLO COUNTY SCHOOL DISTRICT 70 BOARD OF EDUCATION; WILLIAM G. KAUFMAN, Plaintiffs - Appellants,
v.
JARED POLIS, Governor of Colorado in his official capacity, [*] Defendant - Appellee.

          Appeal from the United States District Court No. 1:11-CV-01350-RM-NYW for the District of Colorado

          David E. Skaggs, Dentons U.S. LLP, Denver, Colorado (Lino S. Lipinsky de Orlov, Dnetons U.S. LLP, Denver, Colorado, Herbert Lawrence Fenster and Shannon Tucker, Covington & Burling LLP, Washington, D.C., Michael F. Feeley, Sarah M. Clark, Carrie E. Johnson, and Cole J. Woodward, Brownstein Hyatt Farber Schreck LLP, Denver, Colorado, and John A. Herrick, Denver Colorado, with him on the briefs), for Plaintiffs-Appellants.

          Frederick R. Yarger, Solicitor General (Cynthia H. Coffman, Attorney General, Glenn E. Roper, Deputy Solicitor General, Megan Paris Rundlet, Assistant Solicitor General, Kathleen Spalding, Senior Assistant Attorney General, Stephanie Lindquist Scoville, Senior Assistant Attorney General, and Matthew D. Grove, Assistant Solicitor General, with him on the brief), Office of the Attorney General for the State of Colorado, Denver, Colorado, for Defendant-Appellee.

          Shannon Wells Stevenson and Kyle W. Brenton, Davis Graham & Stubbs LLP, Denver, Colorado, filed an Amici Curiae brief in support of Plaintiffs-Appellants.

          Steven J. Lechner and Cody J. Wisniewski, Mountain States Legal Foundation, Lakewood, Colorado, filed an amici brief in support of Defendant-Appellee.

          Before BRISCOE, SEYMOUR, and HOLMES, Circuit Judges.

          SEYMOUR, CIRCUIT JUDGE.

         This case has a long history. The issue currently before us is whether certain school districts, a special district board, and/or a county commission have standing to challenge Colorado's Taxpayer Bill of Rights ("TABOR"). Colo. Const. art. X, § 20. TABOR allows the people of Colorado to raise or prevent tax increases by popular vote, thereby limiting the power of Colorado's legislative bodies to levy taxes. On a motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), the district court held that plaintiffs had Article III standing but that they lacked political subdivision standing and prudential standing. Accordingly, the court dismissed the complaint. Plaintiffs appeal.

         This case is rife with difficult issues, and we applaud the district court for its attempts to "don waders" and generate some cognizable structure out of the sludge. Nevertheless, we conclude that it could not properly reach its conclusions at this stage of litigation. Because we hold that the political subdivision plaintiffs are not barred by standing requirements, we reverse.

         I.

         Plaintiffs contend that TABOR denies them a "republican form of government" as guaranteed by Congress in the Colorado Enabling Act, ch. 139, 18 Stat. 474 (1875) ("Enabling Act"), because it takes power from the legislature and puts it into the hands of the people of Colorado in violation of the Guarantee Clause, see U.S. Const. art. IV, § 4, and the Enabling Act as enforced by the Supremacy Clause, see U.S. Const. art. VI, § 2. In one of our prior opinions, we held that certain individual legislator plaintiffs had standing to make this claim and that the claim was not a nonjusticiable political question. See Kerr v. Hickenlooper, 744 F.3d 1156, 1161 (10th Cir. 2014) ("Kerr I"). On appeal, the Supreme Court vacated and remanded the matter to us for further consideration in light of its opinion in Arizona State Legislature v. Arizona Indep. Redistricting Com'n, 135 S.Ct. 2652 (2015). See Hickenlooper v. Kerr, 135 S.Ct. 2927 (2015).

         On remand, we held that the individual legislator plaintiffs lacked standing because they were asserting an institutional injury. Kerr v. Hickenlooper, 824 F.3d 1207, 1211 (10th Cir. 2016) ("Kerr II"). We instructed the district court to determine whether any other plaintiffs had standing. Back at the district court, plaintiffs amended their complaint to add certain additional entities: eight school boards, the Board of County Commissioners of Boulder County, and a special district board. As noted, the district court thereafter dismissed the complaint.

         TABOR prevents the state legislature and local entities from enacting new taxes or raising taxes except by popular vote. Particularly significant to plaintiffs in this case, TABOR prohibits state and local governments from appropriating revenue in excess of the prior year's spending, and it requires the state and local governments to refund taxpayers for revenues appropriated in excess of the prior year's spending. Colo. Const. art. X, § 20(7)(a) & (d). TABOR also causes plaintiffs to incur costs from presenting matters to voters. Plaintiffs allege that these requirements inhibit them from performing their mandated responsibilities under Colorado law. See, e.g., Colo. Const. art. XIV.[1]

         As a condition of admitting Colorado to the Union, Congress required that the state's constitution "shall be republican in form." 18 Stat. 474. This language mimics the language from the Guarantee Clause of the United States Constitution. See U.S. Const. art. IV, § 4. Under the Supremacy Clause, federal law controls when federal and state law are in conflict with one another. U.S. Const. art. VI, § 2. Plaintiffs contend that TABOR denies them the republican form of government required of the state of Colorado by the Enabling Act and is thus unconstitutional under the Supremacy Clause.

         II.

         We review the district court's "dismissal for lack of standing de novo, applying the same standard used by the district court." Petrella v. Brownback, 697 F.3d 1285, 1223 (10th Cir. 2012) (internal quotation marks omitted). "[A]s in all standing inquiries, the critical question is whether at least one petitioner has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction." Horne v. Flores, 557 U.S. 433, 445 (2009) (emphasis in original); see also Watt v. Energy Action Educ. Found., 454 U.S. 151, 160 (1981); Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264 n.9 (1977). Thus, if at least one plaintiff can demonstrate standing, we need not consider standing for the other plaintiffs. The district court determined that the political subdivision plaintiffs established Article III standing and defendants do not contest this conclusion on appeal. Even so, the district court dismissed the action for lack of subject matter jurisdiction because it concluded that two independent doctrines barred these plaintiffs: political subdivision standing and prudential standing. The issue before us is whether these other limitations indeed preclude the political subdivision plaintiffs from establishing standing.

         III.

         We begin by determining whether there are "prudential standing" limitations preventing plaintiffs from challenging TABOR. Plaintiffs argue that in light of the Supreme Court's decision in Lexmark Int'l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014), the district court erred in examining these prudential concerns on a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction.[2] We agree. In Lexmark, the Supreme Court described the label "prudential standing" as "misleading" and "inapt."[3] See id. at 125, 127 n.3. "Although the jurisprudence surrounding standing and jurisdiction has at times been muddled, we have clearly held that prudential standing is not a jurisdictional limitation . . . ." Niemi v. Lasshofer, 770 F.3d 1331, 1345 (10th Cir. 2014) (citing Wilderness Soc. v. Kane Cnty., 632 F.3d 1162, 1168 n.1 (10th Cir. 2011) (en banc)). Accordingly, the district court should not have evaluated defendant's motion to dismiss for lack of subject matter jurisdiction on the basis of prudential standing. See VR Acquisitions, LLC v. Wasatch Cnty., 853 F.3d 1142, 1146 n.4 (10th Cir. 2017).

         IV.

         Properly situating the prudential standing inquiry does not complete our analysis. The district court also found that, independently of prudential standing concerns, the political subdivision plaintiffs are barred by political subdivision standing restrictions.[4]

         It is true that political subdivisions generally lack standing to sue their creating state. Housing Authority of Kaw Tribe of Indians of Oklahoma v. City of Ponca City, 952 F.2d 1183, 1188 (10th Cir. 1991). But "the Supreme Court and courts of appeals have shied away from erecting an absolute bar." City of Hugo v. Nichols, 656 F.3d 1251, 1256 (10th Cir. 2011). In certain circumstances we have held that political subdivisions have standing, and two cases guide our analysis: City of Hugo, and Branson v. Romer, 161 F.3d 619 (10th Cir. 1998). The district court and plaintiffs differ in their interpretations of the scope of these holdings.[5] Because we conclude that under either proffered formulation the district court erred in dismissing these claims on a Rule 12(b)(1) motion, we need not determine the precise reach of these precedents.

         Plaintiffs assert the essence of City of Hugo and Branson is that "a political subdivision has standing to bring a constitutional claim against its creating state when the substance of its claim relies on the Supremacy Clause and a putatively controlling federal law." Branson, 161 F.3d at 628. They identify the dispositive question as whether the right sought to be vindicated was "written to protect individual rights, as opposed to collective or structural rights." Id. Arguing that the political subdivision plaintiffs here, like those in Branson, seek to vindicate federal rights that are statutory, structural and collective rather than constitutional, individual and contractual, they urge the conclusion that as in Branson the political subdivision plaintiffs here have standing. The government does not contest that employing this interpretation of our precedents casts the present political subdivision ...


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