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Kerr v. Polis.

No. 17-1192. D.Colo. Judge Tymkovich. Colorado Taxpayer Bill of Rights—US Constitution’s Guarantee Clause—Colorado Enabling Act—Fed. R. Civ. P. 12(b)(1)—Fed. R. Civ. P. 12(b)(6).

December 13, 2021

Plaintiffs consist largely of school districts and other political subdivisions that filed suit in 2011 alleging that the requirement of voter approval for tax increases under the Colorado Taxpayer Bill of Rights (TABOR) deprives them of a Republican Form of Government protected by the US Constitution (Guarantee Clause) and Colorado’s statehood Enabling Act.

Following years of litigation and a series of district and appellate court rulings, the governor moved to dismiss the complaint for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1). The district court granted the motion, concluding that neither the Guarantee Clause nor the Enabling Act authorized the political subdivisions to sue the state. A panel of the Tenth Circuit rejected that conclusion, determining that plaintiffs met the requirements for political subdivision standing. The governor petitioned for rehearing en banc. The Tenth Circuit granted the petition and asked the parties to specifically brief “whether political subdivision standing is a jurisdictional limitation and what political subdivision standing requires.”

The Tenth Circuit first determined that the political subdivisions satisfied the constitutional standing requirements because they alleged a cognizable injury in fact by incurring costs necessary to present matters to voters for their decisions. However, the Tenth Circuit further determined that the limit on claims brought by political subdivisions has nothing to do with jurisdiction but rather goes to the merits of a plaintiff’s claims (i.e., whether a plaintiff has stated a claim on which relief can be granted). The question is thus whether the political subdivision has a cause of action.

The Tenth Circuit articulated a two-step process for answering that question. First, the court must assess whether the political subdivision’s alleged cause of action rests on a substantive constitutional provision. If it does, the claim cannot proceed because substantive constitutional claims by a political subdivision against its parent state cannot stand. Second, if the political subdivision brings its suit under a federal statute, the court must determine whether Congress specifically intended to create a cause of action for political subdivisions.

Because the political subdivision limitation goes to the merits, the Tenth Circuit converted the governor’s Rule 12(b)(1) motion to a motion to dismiss under Rule 12(b)(6) and concluded that (1) the Guarantee Clause does not confer a right on political subdivisions that they can enforce against their parent states, and (2) the Enabling Act, which states that Colorado’s “constitution shall be in republican form,” does not specify for whom the protection is intended or indicate that a republican government is a right intrinsic to being a political subdivision. Accordingly, plaintiffs failed to state a claim on which relief can be granted.

The dismissal of plaintiffs’ complaint was affirmed under Rule 12(b)(6).

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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