Case Summary

Colorado’s Constitution includes the Taxpayer’s Bill of Rights, which requires voter approval for all new taxes.  A group of legislators challenged this constitutional provision, arguing that it infringes on their constitutional right to govern. Elected officials have no constitutional right to increase taxes without voter approval, much less standing to challenge a constitutional provision that protects taxpayers.

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U.S. Court of Appeals for the Tenth Circuit

Case History

In 1992, Colorado voters adopted by initiative the Taxpayer’s Bill of Rights (TABOR), limiting the power of the General Assembly to levy new taxes or increase tax rates without voter approval. In May 2011, various state legislators and other Colorado government officials and citizens filed suit in federal district court against Colorado Governor, John Hickenlooper, alleging that the limitations on the taxing authority of the General Assembly imposed by TABOR deprive the State of a republican form of government, in violation of the Guarantee and Supremacy Clauses, and in violation of the Equal Protection Clause, of the U.S. Constitution, the Colorado Enabling Act, and various clauses of the Colorado Constitution on the General Assembly’s authority to spend revenue.

In August 2011, the Colorado Attorney General, arguing that the state legislators lack standing and that the claims present “non-justiciable” political questions, moved to dismiss the lawsuit. In July 2012, the district court held that the members of the Colorado General Assembly have standing because their power to tax has been erased and that the claims may be decided by a court because the nature of a republican form of government can be decided by “judicially manageable standards” and is not a decision given to another branch of government. In August 2012, Colorado’s Attorney General filed a motion for review prior, to full trial before the district court (“interlocutory review”), by the Tenth Circuit, which the state legislators opposed. In November 2012, a three-judge panel of the Tenth Circuit agreed to hear the appeal. 

The Governor filed his opening brief at the Tenth Circuit on February 1, 2013. On February 11, 2013, MSLF filed an amici curiae brief in support of the Governor on behalf of the Colorado Union of Taxpayers Foundation and 19 members of the Colorado General Assembly. The state legislators’ response brief was filed April 10, 2013.  On April 24, 2013, the General Assembly filed an amicus curiae brief in support of the state legislators.  On May 13, 2013, the Governor filed his reply. Oral Arguments were heard on September 23, 2013.  

On March 7, 2014, a panel of the Tenth Circuit affirmed the district court’s ruling and remanded for further proceedings.  On April 4, 2014, the defendant filed a petition for rehearing en banc.  

On April 8, 2014, the panel ordered the plaintiffs to file a response to defendant’s petition.  On May 7, 2014, the plaintiffs filed a response in opposition.  On July 22, 2014, the petition was denied over the dissent of three judges.

On October 17, 2014, the Governor filed a petition for writ of certiorari.  On November 20, 2014, MSLF filed an amicus curiae brief on behalf of the Colorado Union of Taxpayers Foundation and 22 members of the General Assembly in support of the petition.  On November 21, 2014, the respondents filed an opposition brief.  On June 30, 2015, the Supreme Court of the United States granted, vacated, and remanded the ruling of the Tenth Circuit for further consideration in light of the Court’s ruling in a related case.

On July 31, 2015, the parties filed supplemental briefs addressing whether the ruling of the Supreme Court of the United States in Arizona State Legislature v. Arizona Independent Redistricting Commn. required the Tenth Circuit to reconsider its previous decision.  The same day, MSLF filed an amicus brief on behalf of the Colorado Union of Taxpayers Foundation, 44 current Colorado state legislators, and 7 former Colorado state legislators in support of Governor Hickenlooper.  MSLF argued that Arizona State Legislaturerequired the Tenth Circuit to dismiss the case.  On August 20, 2015, the parties filed supplemental response briefs.  On January 21, 2016, the Tenth Circuit heard oral argument.

On June 3, 2016, the Tenth Circuit held that the individual legislators did not have standing to challenge TABOR, as they alleged institutional injuries that can only be challenged by the entire legislature.  On July 19, 2016, the Tenth Circuit denied the legislators’ petition for rehearing.  

After remand, the legislators filed an amended complaint, asserting the remaining plaintiffs and added plaintiffs—including county commissions, boards of education, and school districts—had standing.  On December 16, 2016, Governor Hickenlooper again moved to dismiss for lack of standing.  On May 4, 2017, the Colorado federal district court granted the motion to dismiss for lack of standing.  Plaintiffs appealed to the U.S. Court of Appeals for the Tenth Circuit, and filed their opening brief on September 27, 2017.  On November 27, 2017, Governor Hickenlooper filed his response brief urging affirmance because the plaintiffs lacked standing, and on December 4, 2017, MSLF filed an amici curiae brief, on behalf of the Colorado Union of Taxpayers Foundation and MSLF, in support of Governor Hickenlooper.  On January 1, 2018, the plaintiffs filed their reply brief. 

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