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Since its creation in 1977, MSLF has been one of the Nation's leading legal centers fighting to ensure that the federal government remains a limited government and a government of laws and not men and women. MSLF recognizes that the Constitution was written, not to protect the various units or levels of government, but to preserve the liberty of the American people. MSLF is committed to ensuring that they continue to have that freedom and opportunity.

Kerr v. Hickenlooper

Why We Fight:

Elected officials have no constitutional right to increase taxes without voter approval, much less standing to challenge a constitutional provision that protects taxpayers.

Summary:

Colorado’s Constitution includes the Taxpayer’s Bill of Rights (TABOR), 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.

Legal Question:

Whether the people of the State of Colorado may limit the taxing authority of the General Assembly by amending the State Constitution?

Plaintiffs:

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; Paul Booth; Alexander E. Bracken; William K. Bregar, Member Pueblo District 70 Board Of Education 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; Dickey Lee Hullinghorst, Colorado State Representative; Nancy Jackson, Arapahoe County Commissioner; William G. Kaufman; Claire Levy, Colorado State Representative; Margaret (Molly) Markert, Aurora City Councilwoman; Megan J. Masten; Monisha Merchant, Member University Of Colorado Board Of Regents; Michael Merrifield; Marcella (Marcy) L. Morrison; John P. Morse, Colorado State Senator; Pat Noonan; Ben Pearlman, Boulder County Commissioner; Wallace Pulliam; Frank Weddig, Arapahoe County Commissioner; Paul Weissmann; and Joseph W. White.

Defendant:

John Hickenlooper, Governor of Colorado 

Amici Curiae:

Colorado Union of Taxpayers Foundation, Sen. Kevin Lundberg, Rep. Jerry Sonnenberg, Rep. Justin Everett, Rep. Spencer Swalm, Rep. Janak Joshi, Rep. Perry Buck, Sen. Ted Harvey, Sen. Kent Lambert, Sen. Mark Scheffel, Sen. Kevin Grantham, Sen. Vicki Marble, Sen. Randy Baumgardner, Rep. Dan Nordberg, Rep. Frank Mcnulty, Rep. Jared Wright, Rep. Chris Holbert, Rep. Kevin Priola, Sen. Scott Renfroe, and Sen. Bill Cadman, all represented by MSLF

Court:

U.S. Court of Appeals for the Tenth Circuit
An appeal to the U.S. Court of Appeals for the Tenth Circuit

In 1992, Colorado voters adopted by initiative the 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 Legislature required 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.  On May 5, 2017, the Colorado federal district court dismissed the lawsuit holding that the plaintiffs lack standing, that is, the constitutional right to sue. 

No Status Updates
  • Colorado Taxpayer Urge Upholding Ruling That Killed Endless TABOR Lawsuit

    Dec 4, 2017
    Colorado taxpayers, defending their right to have the final say regarding new taxes imposed upon them, today urged the U.S. Court of Appeals for the Tenth Circuit to uphold the ruling of a federal district court that various political subdivisions (eight school districts, a county commission, and a special district) cannot challenge the constitutionality of the Taxpayer’s Bill of Rights (TABOR).
  • Colorado Federal District Court Kills Long-Running TABOR Lawsuit

    May 5, 2017
    Colorado taxpayers defending the right to limit spending by use of a constitutional amendment today celebrated the ruling of a federal district court that individual Colorado legislators may not challenge the constitutionality of the Taxpayer’s Bill of Rights (TABOR).
  • Tenth Circuit: U.S. Supreme Court Ruling Bars TABOR Lawsuit

    Jun 3, 2016
    Colorado taxpayers defending the right to limit spending by use of a constitutional amendment today celebrated the U.S. Court of Appeals for the Tenth Circuit’s ruling that individual Colorado legislators may not challenge the constitutionality of the Taxpayer’s Bill of Rights (TABOR).
  • U.S. Supreme Court Ruling Bars TABOR Lawsuit

    Jul 31, 2015
    Colorado taxpayers defending the right to limit spending by use of a constitutional amendment today urged the U.S. Court of Appeals for the Tenth Circuit to rule that Colorado legislators may not challenge the constitutionality of the Taxpayer’s Bill of Rights (TABOR).
  • Taxpayers Urge U.S. Supreme Court To Review TABOR Lawsuit

    Nov 21, 2014
    Colorado taxpayers defending their right to limit spending by use of a constitutional amendment today urged the Supreme Court of the United States to review a ruling by a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit upholding a Colorado federal district court’s decision that allowed Colorado legislators to challenge the Taxpayer’s Bill of Rights’ (TABOR’s) constitutionality.
  • Taxpayers Lose Appeal for Right To Stop Spending

    Mar 7, 2014
    Colorado taxpayers defending their right to limit spending by use of a constitutional amendment today suffered a setback when a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit upheld a Colorado federal district court’s ruling.
  • Taxpayers Fight For Constitutional Right To Stop Spending

    Feb 11, 2013
    Colorado taxpayers defending their right to limit spending by use of a constitutional amendment today urged the U.S. Court of Appeals for the Tenth Circuit to overturn a ruling by a Colorado federal district.


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