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Kerr v. Polis

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Kerr et al. v. Polis (previously Kerr et al. v. Hickenlooper)
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Case history
Filed:2011
Trial court:Colorado District Court
Trial court judge:William J. Martínez
Appellate court:United States Court of Appeals for the 10th Circuit


Kerr et al. v. Polis (previously Kerr et al. v. Hickenlooper) is an ongoing lawsuit regarding whether or not the Colorado 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, 33 plaintiffs filed Kerr et al. v. Hickenlooper in the U.S. District Court for Colorado. Sen. Andy Kerr (D-22) was named as the lead plaintiff. Gov. Hickenlooper (D) was named as the defendant in his official capacity as governor. When Jared Polis was sworn in as governor on January 8, 2019, Polis became the defendant.

Plaintiffs arguments

Plaintiffs allege that TABOR is unconstitutional because it denies them the republican form of government that is guaranteed by the Guarantee Clause of the U.S. Constitution.[1] Plaintiffs made the following statement on their website:[2]

“ 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. 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.'[3] ”

Defendants arguments

Attorney General John Suthers (R), acting on behalf of the state government, said that plaintiffs did not have standing before the court over TABOR. He said the question of TABOR was a political question, not one for the courts.[4][5]

Rulings and timeline

District court ruling (2012)

On July 30, 2012, Judge William J. Martínez of the U.S. District Court for Colorado rejected the attorney general's position, stating, "The court holds that the plaintiffs who are current members of the Colorado General Assembly have standing to bring this action."[2] Judge Martínez allowed the case to move forward.[6]

Appeals court ruling (2014)

The defense appealed the decision to the 10th Circuit Court of Appeals. In March 2014, the court ruled that the case was justiciable.[7] The court further denied a petition for rehearing en banc in July 2014.[8]

The 10th Circuit Court of Appeals ruled that the original plaintiffs in the case did not have standing.[9]

District court ruling (2016)

After being sent to the Supreme Court and then back to the 10th Circuit, the appellate court sent to the case back to the district court to determine if other plaintiffs had standing. Other plaintiffs were added to the case, including eight school districts, a county board of commissioners, and a recreation district. District court dismissed the case saying that the additional plaintiffs lacked standing.[9]

Appeals court (2019)

On July 22, 2019, the 10th Circuit Court of Appeals ruled 2-1 to reverse the district court's ruling that plaintiffs did not have standing and to remand the case back to the district court for further consideration.[9]

Appeals court (2020)

In October 2020, the 10th Circuit Court of Appeals agreed to review the legal challenge against TABOR.[10]

Background

Initiative 1

In 1992, 53.68% of Colorado voters approved a constitutional amendment to create a Taxpayer Bill of Rights, otherwise known as a TABOR. The measure, Initiative 1, required statewide voter approval of tax increases that exceed an index created by combining inflation and population increases.[11][12]

Colorado Initiative 1 (1992)
ResultVotesPercentage
Approveda Yes 812,308 53.68%
No700,90646.32%

Election results via: Colorado State Legislative Council, Ballot History

Guarantee Clause

See also: United States Constitution, Article 4, Section 4

The Guarantee Clause comes from Article 4 of the United States Constitution. It reads as follows:

Text of Section 4:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.

Plaintiffs

Initial plaintiffs

Additional plaintiffs

  • Cheyenne Well School District Board of Education
  • Susan Lontine
  • Denver County Publis Schools Board of Education
  • K.C. Becker
  • Boulder County Board of County Commissioners
  • Boulder Valley School District Board of Education
  • Gunnison County Metropolitan Recreation District
  • Leslie Herod;
  • Pueblo City District 60 Board of Education
  • Christopher J. Hansen
  • Gunnison Watershed School District Board of Education
  • Colorado Springs District 11 Board of Education
  • Poudre School District Board of Education
  • Pueblo County School District 70 Board of Education
  • William G. Kaufman

Amici Curiae briefs

The following groups filed an Amici Curiae brief in support of plaintiffs:[9]

  • Colorado Association of School Boards
  • Colorado Association of School Executives
  • The Colorado Union of Taxpayers Foundation

Defendant

The Governor of Colorado, in his official capacity, was named as the defendant in this case. The initial defendant was John Hickenlooper but was substituted with Jared Polis when he assumed the office in January 2019.[9]

Amici Curiae briefs

Mountain States Legal Foundation filed an Amici Curiae brief in support of the defendant:[9]

Colorado Attorney General Phil Weiser released a statement arguing, "Until [the 10th circuit court of appeals' ruling], the courts have consistently ruled that federal courts are not the proper place for school boards, special districts and county commissions to resolve disagreements with their parent state over state policy. Under controlling law, political subdivisions do not have standing to use federal courts to challenge state policies — regardless of the merits of their complaints about the policy — unless there is a specific federal law that gives them rights to do so."[13]

See also

External links

Footnotes

  1. ↑ The Colorado Statesman, "Lawsuit aims to toss TABOR Amendment," May 27, 2011
  2. ↑ 2.0 2.1 Denver Business Journal, "Judge refuses to throw out lawsuit against TABOR," July 30, 2012
  3. ↑ Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
  4. ↑ Colorado Springs Gazette, "TABOR lawsuit gets round in court, but decision unlikely for months," September 23, 2013
  5. ↑ The Denver Post, "Federal judge allows legal challenge to TABOR to go forward," July 30, 2012
  6. ↑ Kerr v. Hickenlooper (D. Colo. 2012)
  7. ↑ Excess of Democracy, "BREAKING: TENTH CIRCUIT FINDS GUARANTEE CLAUSE CLAIM JUSTICIABLE," March 7, 2014
  8. ↑ Excess of Democracy, "BREAKING: OVER FOUR DISSENTS, 10TH CIRCUIT DENIES EN BANC HEARING IN GUARANTEE CLAUSE CASE," July 22, 2014
  9. ↑ 9.0 9.1 9.2 9.3 9.4 9.5 Court Listener, "Kerr v. Hickenlooper (Kerr v. Polis)," July 22, 2019
  10. ↑ Colorado Politics, "10th Circuit agrees to hear TABOR challenge," October 16, 2020
  11. ↑ Colorado Statesman, "Springs Council rethinks TABOR repeal," January 16, 2009
  12. ↑ Colorado State Legislative Council, "Ballot History," accessed February 20, 2014
  13. ↑ Colorado Sun, "Colorado attorney general asks federal appellate court to reconsider revival of lawsuit challenging TABOR," accessed September 5, 2019
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