Kerr v Hickenlooper; 10th Cir. rules legislators have standing

[Nuclear Unicorn]

Justia.com Opinion Summary: Various groups and several Colorado state legislators filed suit in federal district court to challenge the Taxpayer's Bill of Rights (TABOR) violated the Guarantee Clause of the federal Constitution, was in direct conflict with provisions of the Enabling Act, and impermissibly amended the Colorado Constitution. In order to avoid Eleventh Amendment sovereignty issues, the Governor of Colorado was designated as the named defendant. Governor John Hickenlooper filed his Answer to the plaintiffs' Complaint, and promptly followed with a motion to dismiss, alleging that plaintiffs lacked Article III standing and prudential standing, and that their claims were barred by the political question doctrine. That motion was denied by the district court, and the Governor appealed to the Tenth Circuit Court of Appeals, contending the district court erred. The Governor asked the Court to dismiss the case on the same bases that he presented at district court. The ultimate issue before the Tenth Circuit was: whether plaintiffs suffered a particularized injury not widely shared by the general populace that entitled them to have their case heard by the federal courts, and whether the question presented was purely political in nature and should not be reached by the courts. The Tenth Circuit concluded that these plaintiffs could bring their claims, and that the political question doctrine did not bar the Court's consideration.

http://law.justia.com/cases/federal/appellate-courts/ca10/12-1445/12-1445-2014-03-07.html

Synopsis -- The state legislature is claiming the people of Colorado unconstitutionally adopted an amendment to the state's constitution that requires a referendum in order to raise taxes. It is their contention, I think, that the referendum violates the Guarantee clause that all state governments must be republican (little "r&quot in nature and thus the referendum was too democratic (little "d&quot in nature.

This case is fraught with political danger. First, it pits Democratic lawmakers against a Democratic governor. While this may be a boon for the governor in his re-election campaign the Democratic margins in the state houses are razor thin. Now we have a sustained Blue-on-Blue engagement where we are cranking out what is essentially taxpayer-funded campaign ads for the GOP without the GOP having to lift a finger.

Second, the Democrats in CO are already in trouble with the electorate on several fronts, including taxes. The electorate turned down a $1 billion/year education tax initiative by 2:1 even though the initiative supporters wildly outspent their opponents. Being seen as willing to sue your own constituents to defy their will only exacerbates the issue.

Third, the state had an ecumenical moment with the legalization of marijuana -- which is also bringing in hefty revenue -- but that too was passed by constitutional referendum. This lawsuit could tear all that asunder and the MJ revenues makes it hard for plaintiffs to claim they need the money or that people are incapable of acting in their own best interest.

Fourth, second-term mid-term elections favor the party out of power. The in-power party constituents tend to feel at ease because -- well -- they've been in power for 5+ years. It's the out-of-power party that is chomping at the bit and eager for change, i.e. 2006. This will only further animate the GOP base (a quick Google-ing will show they're the only ones really talking about it).

In the best of political climates I would say this suit was ill-advised. Now it may well be the perfect storm for the GOP to retake the state houses. Hickenlooper may well survive (I think he will) but does anyone want to lay odds that he'll be the stalwart vetoing authority against all bills Republican?