A three-judge panel on the Federal 10th Circuit Court of Appeals ruled Friday that a lawsuit challenging the Taxpayer’s Bill of Rights (TABOR) amendment to the Colorado Constitution may proceed, and remanded the case to federal district court to proceed to trial on the merits.

Byron White Courthouse 10th Circuit Denver

The appeals court ruling addressed only the issue of whether the plaintiffs (33 “educators” and legislators who are “mostly Democrats” with a few token “Republicans”) have legal standing to sue, and whether the lawsuit is barred by the “political question” doctrine, and explicitly did not address the merits (or lack thereof; the case has been widely derided as frivolous and groundless) of the lawsuit:

The merits of the case are not before us. We express no view on the substantive issues and intend none. We consider solely standing and the political question doctrine.  (Ruling at 6)

Establishing standing to sue requires, first and foremost, that the plaintiff “has suffered a concrete and particular injury in fact that is either actual or imminent” – which the court affirmed for the plaintiffs who are current or former legislators, since

Legislator-plaintiffs contend they have been injured because they are denied the authority to legislate with respect to tax and spending increases. (Ruling at 21)

The more significant element of the appeals court ruling addresses the “political question” doctrine – the issue of whether the claims brought by the lawsuit may properly be addressed by the courts at all.

 As a threshold matter, we must decide if the political question doctrine categorically precludesGuarantee Clause challenges against state constitutional amendments adopted by popular vote. (Ruling at 29)

The appeals court concluded that guiding U.S. Supreme Court precedent (Luther v. Borden, 48 U.S. 1 (1849) and Pacific States Telephone and Telegraph Company v. Oregon, 223 U.S. 118 (1912), respectively, does not preclude ”merits consideration in this case.”  (Ruling at 29)

Both the Luther and Pacific States claims differ from those at bar. Importantly, both cases involved wholesale attacks on the validity of a state’s government rather than, as before us, a challenge to a single provision of a state constitution.  (Ruling at 31)

Although acknowledging that “[t]here can nevertheless be little doubt that these cases include language suggesting that Guarantee Clause litigation is categorically barred by the political question doctrine” the appeals court relied on another Supreme Court ruling (Baker v. Carr, 369 U.S. 186 (1962), advancing an equal protection claim) that established a “need for case-by-case inquiry.” (Ruling at 32)

 Baker then announced six factors that render a case non-justiciable under the political question doctrine:
[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; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

“Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for nonjusticiability on the ground of a political question’s presence.” Id.

Relying on the Court’s directive in Baker that “there should be no dismissal for non-justiciability on the ground of a political question’s presence” absent one of the specifically identified factors, 369 U.S. at 217, we reject the proposition that Luther and Pacific States brand all Guarantee Clause claims as per se non-justiciable. (Ruling at 35)

The appeals court opinion on numerous occasions emphasizes the narrowness of the ruling:

Governor Hickenlooper argues that the operative complaint fails to state a claim upon which relief can be granted because Colorado’s government remains republican in form after the passage of TABOR. The Governor did not assert this traditional Fed. R. Civ. P. 12(b)(6) argument to the district court with respect to the Guarantee Clause claim; he sought dismissal of that claim only on standing, prudential standing, and political question grounds.

Because the order at issue in this limited interlocutory appeal does not include a decision as to whether the Guarantee Clause claim asserted by plaintiffs plausibly states a basis for relief under Fed. R. Civ. P. 12(b)(6), we cannot address that question. We stress that our decision on plaintiffs’ Guarantee Clause claim is quite limited, leaving all issues other than standing, prudential standing, and the political question doctrine to the district court. (Ruling at 47)

 Quo Vadis?

The 10th Circuit Appeals Court ruling simply returns the case to trial in federal district court, where the case will now be judged on the merits of the plaintiffs’ argument and claim for legal relief.  The plaintiffs argument would seem to be weak, since  constitutional constraints on government are, by definition, constitutionally allowed and present in both the U.S. Constitution and the Colorado Constitution.  The “Guarantee Clause” (United States Constitution, Article IV, Section 4 – “The United States shall guarantee to every State in this Union a Republican Form of Government“) does not grant carte blanche to elected representatives to rule as unrestricted tyrants and dictators between elections.

Now that the lawsuit is returning to trial, it will cost Colorado taxpayers hundreds of thousands in legal fees and costs, and will almost certainly ultimately end up before the United States Supreme Court, since overturning a state constitutional amendment by judicial fiat would have immense implications for the citizens’ initiative process and the right of the people to limit government power by constitutional constraints nationwide.

If “We The People” cannot set constitutional limits on government power, then the very founding principles of this nation – indeed, the foundations of Liberty itself – are at risk.

Reference state’s Motion to Dismiss Plaintiffs’ Substitute Complaint (which was filed back in August 2011 by Governor Hickenlooper and Attorney General Suthers and analysis of the state’s Motion to Dismiss).

Additional references:
A more detailed (and highly informative) discussion of the constitutionality of the citizen initiative and referendum processes may be found in the Texas Law Review article, “A Republic, Not a Democracy?  Initiative, Referendum, and the Constitution’s Guarantee Clause” by Professor Robert G. Natelson.

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone –  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free –nor is it always easy to be a Citizen, not a subject.

Ultimately, though – it’s worth the effort.