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,
JARED POLIS, Governor of Colorado in his official capacity, [*] Defendant - Appellee.
from the United States District Court No.
1:11-CV-01350-RM-NYW for the District of Colorado
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
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.
J. Lechner and Cody J. Wisniewski, Mountain States Legal
Foundation, Lakewood, Colorado, filed an amici brief in
support of Defendant-Appellee.
BRISCOE, SEYMOUR, and HOLMES, Circuit Judges.
SEYMOUR, CIRCUIT JUDGE.
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.
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.
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).
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
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.
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.
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.
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. We agree. In Lexmark,
the Supreme Court described the label "prudential
standing" as "misleading" and
"inapt." 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).
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
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. 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.
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 ...