Share us on: By Eric Kroh
Law360, New York (October 27, 2014, 2:03 PM ET) — Colorado Gov. John Hickenlooper has asked the U.S. Supreme Court to block a challenge by state legislators and educators to the state’s taxpayer bill of rights, which allows voters to approve or deny new taxes, saying the case is not justiciable.
Solicitor General Daniel D. Domenico, on behalf of Hickenlooper, asked the high court to review the Tenth Circuit’s decision in July to let the case go forward, contending that the question on the state’s government should be left out of federal courts.
“Courts throughout American history would have dismissed this case as non-justiciable,” Domenico said in his petition for certiorari, filed Oct. 17. “More than a century of Supreme Court precedent prohibits the federal judiciary from wading into the political questions raised by the guarantee clause.”
The Supreme Court should put to rest the confusion it created in New York v. United States when it opened up the question of whether to maintain the per se rule that prohibits federal courts from ruling on the structure of state governments, Domenico said.
Since the New York decision, a three-way circuit court split has emerged, with the Tenth Circuit standing alone in holding that some guarantee clause claims are justiciable, Domenico said. Meanwhile, the Eleventh and Ninth circuits have continued to apply a per se bar to guarantee clause claims, and other courts have raised the possibility of adjudicating a guarantee clause case but have not done so, he said.
“In parting ways with these other approaches, the Tenth Circuit has taken at least two leaps beyond current law,” Domenico said. “It not only questioned the per se rule but affirmatively rejected it — something no other court has done.”
The Supreme Court should also decide that the plaintiffs in the case do not have standing because they cannot point to a specific legislative vote that has been undone by the taxpayer bill of rights and so fail the test the high court had established in Raines v. Byrd, according to Domenico. Only three of the plaintiffs remain in the state Legislature, he said.
A representative of the plaintiffs was not immediately available for comment.
The Colorado taxpayer bill of rights, or TABOR, adopted in 1992, mandates that a tax law passed by the state Legislature and signed by the governor always be placed on the next election’s ballot for voters to decide whether to approve it. Various groups including state legislators and educators sued Hickenlooper in 2011, claiming that requiring the electorate’s advance approval of tax increases dilutes the power of the legislators, violating the guarantee clause.
Immediately after being sued, Hickenlooper tried to dismiss the suit, saying the plaintiffs did not have standing because they were not individually injured by TABOR. The district court denied the motion, and the governor appealed to the Tenth Circuit.
The three-member Tenth Circuit panel upheld the lower court’s decision on strictly jurisdictional grounds in March, affirming that the plaintiffs had provided adequate proof that TABOR, by requiring voter referendum on most tax issues, caused them injury. The appellate court did not address the case’s merits. In July, a divided Tenth Circuit decided against rehearing the lawsuit en banc.
Hickenlooper is represented by Colorado Solicitor General Daniel D. Domenico.
The case is Hickenlooper v. Andy Kerr et al., case number 14-460, in the U.S. Supreme Court.
–Editing by Christine Chun.