759 F.3d 1186 (10th Cir. 2014), 12-1445, Kerr v. Hickenlooper
|Citation:||759 F.3d 1186|
|Party Name:||For ANDY KERR, Colorado State Representative, et al., Plaintiffs - Appellees, v. JOHN HICKENLOOPER, Governor of Colorado, in his official capacity, Defendant - Appellant. DARCY W. STRAUB, et al., Amici Curiae|
|Attorney:||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, BOB BRIGGS, Westminster City Councilman, BRUCE W. BRODERIUS, member Weld County District 6 Board of ...|
|Judge Panel:||Before BRISCOE, Chief Judge, KELLY, LUCERO, HARTZ, TYMKOVICH, GORSUCH, HOLMES, BACHARACH, PHILLIPS, and MCHUGH, Circuit Judges.[*] HARTZ, Circuit Judge, dissenting from the denial of rehearing en banc. TYMKOVICH, Circuit Judge, joined by HOLMES, Circuit Judge, dissenting from denial of Rehearing ...|
|Case Date:||July 22, 2014|
|Court:||United States Courts of Appeals, Court of Appeals for the Tenth Circuit|
(D.C. No. 1:11-CV-01350-WJM-BNB).
This matter is before the court on the appellant's Petition for Rehearing En Banc . We also have a response. The implicit request for panel rehearing contained in appellant's petition is denied by the original hearing panel. The entire petition, as well as the response, was also circulated to all of the judges of the court who are in regular active service. A poll was called, and a majority of the court voted to deny the en banc request. See Fed. R. App. P. 35(a). Judges Hartz, Tymkovich, Gorsuch and Holmes voted to allow en banc reconsideration.
I respectfully dissent from the denial of en banc review. We are bound by Supreme Court precedent to hold that the Guarantee Clause claim is nonjusticiable as a political question.
The Guarantee Clause provides: " The United States shall guarantee to every State in this Union a Republican Form of
Government." U.S. Const. art. IV, § 4. The claim in this case is that TABOR, an amendment to the Colorado constitution adopted by voter initiative, violates the Guarantee Clause by requiring advance voter approval of new taxes. A quite similar claim was raised in the United States Supreme Court in Pacific States Telephone & Telegraph Company v. Oregon, 223 U.S. 118, 32 S.Ct. 224, 56 L.Ed. 377 (1912). Oregon had amended its constitution to allow the enactment of legislation through an initiative or referendum. One statute so enacted imposed a tax on Pacific States. The company defended against collection of the tax on the ground that the initiative process violated the Guarantee Clause. The Supreme Court held that the claim based on the Guarantee Clause was a political question and " not, therefore, within the reach of judicial power." Id. at 151. The provisions in the Oregon and Colorado constitutions are obviously not identical. But I am at a loss to find a principled basis on which to hold that the challenge in Pacific States was a political question while the challenge here is not. In both, the gist of the claim has been that the Guarantee Clause was violated by the transfer of legislative power from the legislature to the electorate.
The panel opinion attempts to distinguish Pacific States on the ground that it raised " a much broader legal challenge" than does this case. Kerr v. Hickenlooper, 744 F.3d 1156, 1173 (10th Cir. 2014). To support that characterization, the panel opinion quotes from a passage in the Supreme Court's opinion. The passage follows the Court's discussion of the assignments of error raised by Pacific States in its brief to the Court. The Court stated that those assignments were " reduced to six propositions, which really amount to but one, since they are all based upon the single contention that the creation by a state of the power to legislate by the initiative and referendum causes the prior lawful state government to be bereft of its lawful character as the result of the provisions of [the Guarantee Clause]." Pac. States Tel. & Tel. Co., 223 U.S. at 137. After quoting the six propositions in Pacific States' brief, the Court wrote:
In other words, the propositions each and all proceed alone upon the theory that the adoption of the initiative and referendum destroyed all government republican in form in Oregon . This being so, the contention, if held to be sound, would necessarily affect the validity, not only of the particular statute which is before us, but of every other statute passed in Oregon since the adoption of the initiative and referendum . And indeed, the propositions go further than this, since in their essence they assert that there is no governmental function, legislative or judicial, in Oregon, because it cannot be assumed, if the proposition be well-founded, that there is, at one and the same time, one and the same government, which is republican in form, and not of that character.
Id . at 141 (emphasis added to language that is quoted by panel opinion).
This passage set forth the Court's view of the implications of Pacific State's argument, not what was actually stated in its brief. Nowhere did the brief argue, or even suggest, that everything done by any branch of the Oregon state government was illegitimate after approval of the...
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