Kerr v. Hickenlooper is an ongoing lawsuit regarding whether or not theColorado Taxpayer Bill of Rights (TABOR) passed by voters as an initiated constitutional amendment in Colorado in 1992 violates the Guarantee Clause of the United States Constitution.
In 2011, this lawsuit against Initiative 1 was filed by 34 bipartisan plaintiffs. They argued that the initiative was unconstitutional under a republican form of government, referring to the Guarantee Clause of the federal constitution. They made five claims to back up their assertion that TABOR “is unconstitutional because it deprives the state and its citizens of effective representative democracy, contrary to a Republican Form of Government as required under both the United States and Colorado Constitutions”: the Guarantee Clause claim, the Enabling Act claim, the Supremacy Clause claim, the Equal Protection claim and the Impermissible Amendment claim.
In 2012, Colorado District Court Judge William J. Martínez ruled in favor of all but the Equal Protection claim which allowed the other arguments to move forward in the case. However, Martínez’s ruling noted the history of seeing the Guarantee Clause as not justiciable or capable of judicial resolution, and said, “the Court determines that it cannot summarily conclude that Plaintiffs’ Guarantee Clause claim is per se non-justiciable.”
The defense appealed the decision to the 10th Circuit Court of Appeals. In March 2014, the court ruled that the case was justiciable. The court further denied a petition for rehearing en banc in July 2014. Some consider the case likely to reach the U.S. Supreme Court.
Instructions To Listen To Oral Arguments In “Kerr vs. Polis”
The lawsuit Kerr vs. Polis (formerly known as Kerr vs. Hickenlooper) is an existential threat against the Taxpayer’s Bill of Rights. Politicians launched this lawsuit over a decade ago to have the federal courts overturn our Colorado constitutional provision. What makes it especially pernicious is that the legal theory behind Plaintiffs’ arguments is that citizens can’t restrict the legislature in this fashion. Although the people suing claim to aim only for TABOR, if they were to be successful, then the legal theory could lead to entrenched power claiming that citizens have no say in laying out rules that the government must live by. The case is currently before the 10th Circuit Court of Appeals, in which all the judges will review whether the Plaintiffs have “standing” to sue in the first place.
The oral arguments are set for May 10 at 10:00 am Mountain time. It will be only on Zoom for Government. Based on the written arguments, the discussion is likely to be arcane and legalistic. You may listen in if you wish, and here are the instructions for doing so:
Kerr et al. v. Hickenlooper
United States District Court for Colorado :: Civil Action No. 11-cv-1350-WJM-BNB
United States Court of Appeals for the 10th Circuit :: No. 12-1445
United States Supreme Court :: No. 14-460
A Constitutional Challenge to Colorado’s “Taxpayer Bill of Rights”
* * * * * *
Kerr v. Hickenlooper is a lawsuit in federal district court in Colorado. The Plaintiffs (current and past Colorado state legislators, public officials, educators, administrators and private citizens) have sued to overturn the Taxpayer Bill of Rights (“TABOR”). TABOR is an amendment to the Colorado Constitution passed by the voters in 1992. Among its many provisions, TABOR removed from the legislature (and all other levels of state government) the power to enact tax legislation; instead, it requires a plebiscite to approve any new tax measures. This key area of public policy is put off limits to the normal functions of representative institutions — proposals, hearings about impacts, consideration of other interests and alternatives, deliberation, and compromise. In eliminating an essential fiscal power of the Colorado General Assembly, the Plaintiffs claim that TABOR has fundamentally undermined the ability of Colorado’s representative democracy to function and that, as a result, the state no longer has a “republican form of government.” A republican form of government is, however, guaranteed to all states under the Guarantee Clause (Article IV, section 4) of the United States Constitution and also is required to be maintained in the Colorado State Constitution by federal statute (the Colorado Statehood Act of 1875). TABOR thus violates Article IV, section 4, and the requirements of the Statehood Act, and should be invalidated by the court.
Principal pleadings, briefs and Orders of Court in Kerr v. Hickenlooper [in chronological order]
BEFORE THE U.S. DISTRICT COURT FOR COLORADO
Original Complaint, filed May 23, 2011
Substituted Complaint, filed June 3, 2011
Defendant’s Motion to Dismiss, filed August 15, 2011
Plaintiffs’ Brief in Opposition to Motion to Dismiss, filed October 11, 2011
Defendant’s Reply Brief, filed November 18, 2011
Plaintiffs’ Motion for Oral Argument on Motion to Dismiss, filed November 27, 2011
Defendant’s Brief in Opposition to Motion for Oral Argument, filed December 5, 2011
Order for Oral Argument on Motion to Dismiss, December 13, 2011
Order for Supplemental Briefing on Standing, February 17, 2012
Plaintiffs’ Brief on Standing, filed March 16, 2012
Defendant’s Brief on Standing, filed March 16, 2012
Motion for Leave to file Second Amended Complaint, filed March 28, 2012
Second Amended Complaint, filed March 28, 2012
Court Opinion & Order denying Motion to Dismiss as to most claims, filed July 30, 2012
Defendant’s Answer to Complaint filed August 13, 2012
Pleadings and Orders Re Interlocutory Appeal under 28 USC 1292(b)
Defendant’s Motion for Certification for Interlocutory Appeal under 28 USC 1292(b), filed August 10, 2012
Order for Response to Motion for Certification for Interlocutory Appeal, August 13, 2012
Plaintiffs’ Brief in Response (Opposition) to Motion for Certification for Interlocutory Appeal, filed August 24, 2012
Defendant’s Reply Brief in Support of Motion for Certification for Interlocutory Appeal, filed August 31, 2012
Court Order granting Motion for Certification entered September 21, 2012
BEFORE THE U. S. COURT OF APPEALS FOR THE 10TH CIRCUIT
Defendant’s 1292(b) Petition to U. S. Court of Appeals for 10th Circuit, filed September 28, 2012
Plaintiffs’ Answer to 1292(b) Petition, filed October 12, 2012
Defendant’s Reply to Answer, filed October 19, 2012
Order granting Petition, entered November 6, 2012
Governor’s Opening Brief, filed February 1, 2013
Addenda to Governor’s Opening Brief
Plaintiffs’ Response to Governor’s Opening Brief filed April 10, 2013
Governor’s Reply Brief field May 13, 2013
Notice re oral argument set for September 23, 2013, at 9 AM
Plaintiffs’ submission of supplemental authorities under Rule 28(j)
Defendant’s response re supplemental authority
Defendant’s submission of supplemental authority under Rule 28(j)
Plaintiffs’ response re supplemental authority
Transcript of September 23, 2013, oral argument
Defendant’s Second Citation of Supplemental Authorities, November 22, 2013
Plaintiffs’ Response to Governor’s Second Citation of Supp. Auth., December 16, 2013
10th Circuit Panel Decision Affirming District Court Denial of Defendant’s Motion to Dismiss March 7, 2014
Defendant’s Petition for Rehearing En Banc, April 4, 2014
Plaintiffs’ Response to Petition for Rehearing en banc, May 7, 2014
10th Circuit Order Denying Petition for Rehearing, with Dissents, July 22, 2014
BEFORE THE UNITED STATES SUPREME COURT NO. 14-460
Defendant/Petitioner’s Petition for Writ of Certiorari filed October 17, 2014
Plaintiffs/Respondents’ Brief in Opposition to Petition filed November 21, 2014
Defendant’s Reply Brief, filed December 2, 2014
BY AMICI CURIAE
before the District Court
Brief of Amicus Independence Institute on Motion to Dismiss, filed August 22, 2011
Brief of Amici Constitutional Law Professors on Motion to Dismiss, filed February 1, 2012
before the Court of Apeals for the 10th Circuit
Brief of the Independence Inst. and the Cato Inst., filed February 8, 2013
Brief of D’Arcy Straub, pro se, filed February 8, 2013
Brief of Republican Legislators and Colorado Union of Taxpayers, filed February 11, 2013
Brief of NFIB, et al., filed February 12, 2013
Brief of Colorado Parent Teacher Association, filed April 17, 2013
Brief of Colo. Chpt. Amer. Ass’n of Pediatric Physicians & Colo. Nonprofits Ass’n, filed April 17, 2013
Brief of The Bell Policy Center & Colorado Fiscal Institute, filed April 17, 2013
Brief of Colo. Ass’n of School Bds. & Colo. Ass’n of School Execs., filed April 17, 2013
Appendix to CASB-CASE brief
Brief of the Center on Budget & Policy Priorities, filed April 17, 2013
Brief of Constitutional Law Professors, filed April 17, 2013
Brief of Amicus Colorado General Assembly, filed April 26, 2013
before the United States Supreme Court No. 14-460
Brief of Cato Institute, filed November 20, 2014
Brief of Mountain States Legal Foundation et al., filed November 20, 2014
Brief of NFIB et al., filed November 20, 2014
Brief of Texas AG et al., filed November 20, 2014
Brief of Center for Constitutional Juris., et al., filed November 20, 2014
Supreme Court sends TABOR lawsuit back to appeals court
Arizona redistricting case to play role
WASHINGTON — A years-long battle over a Colorado tax law went into another period of overtime on Tuesday when the U.S. Supreme Court sent the fight back to a lower court.
In the short-term, the decision means Colorado’s Taxpayer’s Bill of Rights, or TABOR, is in little danger of going away.
But the law’s long-term prospects are less clear, as is its strict requirement that Colorado officials get permission from state voters whenever they want to raise taxes.
The Supreme Court “sort of kicked the can down the road” when it returned the case to the 10th U.S. Circuit Court of Appeals in Denver, said Ilya Shapiro of the Cato Institute, one of several outside groups that filed briefs last year in support of TABOR.
Opponents for years have tried to dismantle TABOR, arguing that the law unconstitutionally takes away taxing authority from the state legislature and local governments.
Led by state Sen. Andy Kerr and House Speaker Dickey Lee Hullinghorst, they filed suit in 2011.
But other Colorado officials, including Gov. John Hickenlooper, have tried to get the case dismissed by arguing — among other things — that TABOR’s opponents in the legislature do not have the right to take their fight to court.
The 10th Circuit sided last year with the TABOR opponents. In response, Colorado officials asked the Supreme Court to give its opinion on whether the case had standing.
The answer: maybe.
In its two-sentence order issued Tuesday, the Supreme Court presented a mixed bag.
It vacated the decision by the 10th Circuit and asked the lower court to re-examine the TABOR case “for further consideration in light” of a ruling Monday by the Supreme Court in a related Arizona case.
Notably, the justices in that case, which dealt with redistricting, found the Arizona legislature had standing to bring a lawsuit. TABOR opponents took that as a good sign their case ultimately would not be dismissed.
“It isn’t a black-and-white win, but it is encouraging from our perspective,” said Michael Feeley, one member of a team of attorneys representing the TABOR opponents.
“We are in double (or) triple overtime right now,” he added.
But TABOR supporters said the Colorado and Arizona cases are separated by key differences. For example, the TABOR challenge includes only a handful of state legislators — as opposed to the full power of the legislature in Arizona.
That could make a difference when it comes to standing. Indeed, state Attorney General Cynthia Coffman put more stock in the fact the Supreme Court vacated the 2014 decision by the 10th Circuit.
“We are grateful that the Supreme Court recognized the problems with the 10th Circuit’s ruling,” said Coffman in a statement.
“As we’ve said all along, we believe this case to be without merit, and we look forward to once again defending TABOR. We will continue to defend our citizens’ right to have a voice in state tax policy,” she added.
Another outstanding issue in the TABOR case is the unusual question of whether the U.S. court system is within its rights to rule on a key argument that’s been levied by TABOR opponents.
Namely, whether TABOR’s requirement to put tax hikes before voters violates the constitution by transforming Colorado from a republican form of government into a direct democracy.
The court historically has been reluctant to wade into these kinds of debates, but a footnote in the Arizona case seemed split on the idea.
It’s one reason why Shapiro of the Cato Institute said he didn’t expect resolution to the TABOR case anytime soon.
No matter what the 10th Circuit decides next, another appeal to the Supreme Court is almost certain to follow. And that probably won’t get there until the fall of 2016, he added.
Mark K. Matthews: 202-662-8907, mmatthews@ denverpost.com or twitter.com/mkmatthews