759 F.3d 1186 (10th Cir. 2014), 12-1445, Kerr v. Hickenlooper

Docket Nº:12-1445
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
 
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759 F.3d 1186 (10th Cir. 2014)

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

No. 12-1445

United States Court of Appeals, Tenth Circuit

July 22, 2014

(D.C. No. 1:11-CV-01350-WJM-BNB).

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 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, NANCY JACKSON, Arapahoe County Commissioner WILLIAM G. KAUFMAN, CLAIRE LEVY, Colorado State Representative, MARGARET MARKERT, Aurora City Councilwoman, MEGAN J. MASTEN, MICHAEL MERRIFIELD, MARCELLA L. MORRISON, JOHN P. MORSE, Colorado State Senator, PAT NOONAN, BEN PEARLMAN, Boulder County Commissioner, PAUL WEISSMANN, JOSEPH W. WHITE, Plaintiffs - Appellees: Sarah May Mercer Clark, Michael Francis Feeley, Sarah Levine Hartley, John Anthony Herrick, Carrie Elizabeth Johnson, Geoff Williamson, Brownstein Hyatt Farber Schreck, Denver, CO; Herbert L. Fenster, Lino S. Lipinsky de Orlov, David E. Skaggs, McKenna Long & Aldridge, Denver, CO.

For WILLIAM K. BREGAR, member Pueblo District 70 Board of Education, WALLACE PULLIAM Plaintiffs - Appellees: Sarah May Mercer Clark, Michael Francis Feeley, Sarah Levine Hartley, John Anthony Herrick, Carrie Elizabeth Johnson, Brownstein Hyatt Farber Schreck, Denver, CO; Herbert L. Fenster, Lino S. Lipinsky de Orlov, David E. Skaggs, McKenna Long & Aldridge, Denver, CO.

For DICKEY LEE HULLINGHORST, Colorado State Representative Plaintiff - Appellee: Sarah May Mercer Clark, Michael Francis Feeley, John Anthony Herrick, Carrie Elizabeth Johnson, Geoff Williamson, Brownstein Hyatt Farber Schreck, Denver, CO; Herbert L. Fenster, Lino S. Lipinsky de Orlov, David E. Skaggs, McKenna Long & Aldridge, Denver, CO.

For JOHN HICKENLOOPER, Governor of Colorado, in his official capacity, Defendant - Appellant: William Allen, Bernard A. Buescher, Daniel D. Domenico, Jonathan Patrick Fero, Michael Francisco, Megan Paris Rundlet, Stephanie Lindquist Scoville, Kathleen Spalding, Office of the Attorney General for the State of Colorado, Ralph L. Carr Colorado Judicial Center, Denver, CO.

For INDEPENDENCE INSTITUTE, Amicus Curiae: David Kopel, Independence Institute, Denver, CO.

D'ARCY WINSTON STRAUB, Amicus Curiae, Pro se, Littleton, CO.

For CATO INSTITUTE, Amicus Curiae: Ilya Shapiro, Cato Institute, Washington, DC.

For KEVIN LUNDBERG, JERRY SONNENBERG, JUSTIN EVERETT, SPENCER SWALM, JANAK JOSHI, PERRY BUCK, TED HARVEY, KENT LAMBERT, MARK SCHEFFEL, KEVIN GRANTHAM, VICKI MARBLE, RANDY BAUMGARDNER, DAN NORDBERG, FRANK MCNULTY, JARED WRIGHT, CHRIS HOLBERT, KEVIN PRIOLA, SCOTT RENFROE, BILL CADMAN, COLORADO UNION OF TAXPAYERS FOUNDATION, Amici Curiae: James Martin Manley, Mountain States Legal Foundation, Lakewood, CO.

For NATIONAL FEDERATION OF INDEPENDENT BUSINESS LEGAL FOUNDATION, TABOR FOUNDATION, OKLAHOMA COUNCIL FOR PUBLIC AFFAIRS, HOWARD JARVIES TAXPAYERS FOUNDATION, FREEDOM CENTER OF MISSOURI, 1851 CENTER FOR CONSTITUTIONAL LAW, FREEDOM FOUNDATION, GOLDWATER INSTITUTE, Amici Curiae: Karen R. Harned, Luke A. Wake, NFIB Small Business Legal Center, Washington, DC; Richard A. Westfall, Esq., Hale Westfall, Denver, CO.

For COLORADO CHAPTER OF THE AMERICAN ACADEMY OF PEDIATRICS, COLORADO NONPROFIT ASSOCIATION, Amici Curiae: Harold Haddon, Laura Kastetter, Haddon, Morgan, and Foreman, Denver, CO.

For COLORADO GENERAL ASSEMBLY, Amicus Curiae: Stephen G. Masciocchi, Holland & Hart LLP, Denver, CO; Maureen Reidy Witt, Esq., Holland & Hart LLP, Greenwood Village, CO.

FOR BELL POLICY CENTER, COLORADO FISCAL INSTITUTE, Amici Curiae: Matthew Douglas, Nathaniel J. Hake, Paul Rodney, Holly Elizabeth Sterrett, Arnold & Porter, Denver, CO.

For THE CENTER ON BUDGET AND POLICY PRIORITIES, Amicus Curiae: Joseph Guerra, Kathleen Moriarty Mueller, Sidley Austin, Washington, DC.

For COLORADO PARENT TEACHER ASSOCIATION, Amicus Curiae: Catherine Carla Engberg, Shute Mihaly & Weinberger, San Francisco, CA.

For ERWIN CHEMERINSKY, HANS LINDE, WILLIAM MARSHALL, GENE R. NICHOL, WILLIAM WIECEK, Amici Curiae: Melissa Hart, University of Colorado School of Law, Boulder, CO.

For COLORADO ASSOCIATION OF SCHOOL BOARDS, COLORADO ASSOCIATION OF SCHOOL EXECUTIVES, Amici Curiae: John M. Bowlin, Emily L. Droll, Andrew M. Low, Esq., Davis Graham & Stubbs LLP, Denver, CO.

For CENTER ON BUDGET AND POLICY PRIORITIES, Amicus Curiae: Joseph Guerra, Sidley Austin, Washington, DC.

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 Petition, En Banc. GORSUCH, Circuit Judge, dissenting from the denial of rehearing en banc.

ORDER

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.

DISSENT

HARTZ, Circuit Judge, dissenting from the denial of rehearing en banc :

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

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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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