United States District Court, D. Colorado
OPINION AND ORDER
RAYMOND P. MOORE United States District Judge.
3, 2016, the Tenth Circuit Court of Appeals vacated this
Court's Order finding certain legislator-plaintiffs to
have standing, concluded that the legislator-plaintiffs did
not have standing, and remanded for this Court to determine
whether any non-legislator plaintiffs have standing. (ECF No.
December 6, 2016, plaintiffs filed a Fourth Amended Complaint
(“FAC”) against John Hickenlooper in his official
capacity as the Governor of Colorado
(“defendant”), seeking declaratory and injunctive
relief with respect to the Taxpayer's Bill of Rights
(“TABOR”), an amendment to the Colorado
Constitution passed by voter initiative in 1992. (ECF No.
151.) Plaintiffs allege that TABOR violates: Article IV,
Section 4 of the U.S. Constitution; the Enabling Act of 1875
(“the Enabling Act”), 18 Stat. 474; Article IV,
Section 2 of the U.S. Constitution; and Article X, Section 2,
and Article V, Sections 31 and 32 of the Colorado
December 16, 2016, defendant filed a motion to dismiss the
FAC (“the motion to dismiss”), pursuant to
Fed.R.Civ.P. 12(b)(1) (“Rule 12(b)(1)”). (ECF No.
156.) Plaintiffs have responded in opposition to the motion
to dismiss (ECF No. 160), and defendant has filed a reply
(ECF No. 163). Subsequently, plaintiffs filed a motion
requesting oral argument on the motion to dismiss (ECF No.
167), to which defendant has responded (ECF No. 169).
to dismiss for lack of subject matter jurisdiction take two
principal forms: (1) a facial attack, or (2) a factual attack
on the allegations in the complaint. Holt v. United
States, 46 F.3d 1000, 1002 (10th Cir. 1995). Here,
defendant facially attacks the sufficiency of the allegations
in the FAC. (See ECF No. 156 at 6-7.) As a result,
the Court accepts the allegations in the FAC as true for
purposes of its jurisdictional analysis. Holt, 46
F.3d at 1002. The party asserting jurisdiction has the burden
of establishing it. Port City Properties v. Union Pacific
R.R. Co., 518 F.3d 1186, 1189 (10th Cir. 2008).
Pertinent Factual Background
initial matter, the Court notes that this case has been
thoroughly litigated up to this point and received various
opinions from this Court and the Tenth Circuit Court of
Appeals. Those opinions have set forth the alleged facts
concerning the effect of TABOR on the revenue-raising power
of state and local governments in Colorado. The Court, thus,
does not find it necessary to repeat what has come before,
given that the alleged effect of TABOR has not changed.
(See ECF No. 147-1 at ¶¶ 12-46.) What has
changed in this case since its visit to the Tenth Circuit is
the pertinence of the non-legislator plaintiffs. As such, the
Court will summarize the allegations pertaining to the
identity of the plaintiffs, and the injuries they have
of the plaintiffs are political subdivisions of the State of
Colorado, such as county commissions, boards of education,
and special districts. (ECF No. 151 at ¶ 47.)
Specifically, these plaintiffs are: the Board of County
Commissioners of Boulder County; the Boulder Valley School
District RE-2 Board of Education; Cheyenne Wells RE-5 School
District Board of Education; Colorado Springs District 11
Board of Education; the Denver County Public Schools Board of
Education; Gunnison County Metropolitan Recreation District
Board of Directors; Gunnison Watershed RE-1J Board of
Education; Poudre School District Board of Education; the
Pueblo City Schools Board of Education; the Pueblo County
District 70 Board of Education. (Id. at ¶¶
57-58, 66-67, 69, 72-73, 89-91.)
allege that TABOR has injured these political subdivisions by
impairing their fiscal powers and responsibilities, and
undermining a Republican form of government. (Id. at
¶ 47.) More specifically, with respect to the plaintiff
that is a board of county commissioners, it is alleged that
TABOR has caused it to incur costs and expenses to present
matters to voters affecting the exercise of the board's
fiscal powers. (Id. at ¶ 43.) With respect to
the special-district plaintiff, it is alleged that TABOR has
impaired the special district's authority to fulfill its
responsibilities and caused the incurrence of costs.
(Id. at ¶ 45.) With respect to the
school-district plaintiffs, it is alleged that TABOR has
prevented adequate funding of public schools in the State.
(Id. at ¶¶ 34-35.)
addition, attached to plaintiffs' response to the motion
to dismiss, are various resolutions or affidavits from the
political-subdivision plaintiffs. (ECF No. 160-2 to ECF No.
160-14.) Given that this is a facial challenge to the
allegations of the FAC, it is far from certain that documents
attached to pleadings outside the FAC can be considered.
See Holt, 46 F.3d at 1002-03 (explaining that, for
purposes of a factual attack, a court has wide
discretion to consider documents outside the complaint, but
not explicitly stating that such discretion applies to a
facial challenge). Nonetheless, so the record is
complete, the Court will summarize the documents.
and pertinently, the resolutions or affidavits state that
TABOR has caused the respective political subdivisions to
incur costs and expenses in presenting matters to voters for
decision; matters, which, without TABOR, the political
subdivisions would not have needed to present to voters.
(See, e.g., ECF No. 160-3 at 2-3.) All of the
political subdivisions have submitted a resolution of their
respective board (ECF Nos. 160-2 to 160-7; ECF No. 160-9; ECF
No. 160-11; ECF Nos. 160-13 to 160-14), and some of the
school districts have also submitted affidavits (ECF Nos.
160-8, 160-10, 160-12). Almost all of the resolutions or
affidavits reference specific matters that have been
presented to voters, such as mill levy overrides. (ECF No.
160-3 at 3; ECF No. 160-4 at 2; ECF No. 160-5 at 3; ECF No.
160-6 at 2; ECF No. 160-8 at 2-3; ECF No. 160-10 at 2; ECF
No. 160-12 at 2; ECF No. 160-13 at 2-3; ECF No. 160-14 at
Most of the resolutions or affidavits are Dated: behalf of
school districts (ECF No. 160-2 to ECF No. 160-12), but, one
resolution is signed on behalf of a board of county
commissioners (ECF No. 160-13), and one resolution is signed
on behalf of a special district (ECF No. 160-14).
Elected Officials, Educators, and Citizens
the Tenth Circuit's June 3, 2016 holding, plaintiffs
leave in the FAC allegations pertaining to the injuries
suffered by several plaintiffs due to their positions as
legislators. (See ECF No. 151 at ¶¶
48-49.) Those allegations are obviously irrelevant to the
Court's current standing analysis in light of the remand
order. The Court notes the allegations, however, for
plaintiffs listed as elected officials, educators, and/or
citizens are: Andy Kerr, as an elected official, educator,
and citizen; Norma V. Anderson, as a former elected official
and citizen; Jane M. Barnes, as a former elected official and
citizen; K.C. Becker, as an elected official and citizen;
Elaine Gantz Berman, as a former elected official and
citizen; Dr. Alexander E. Bracken, as a citizen; William K.
Bregar, as a former elected official and citizen; Bob Briggs,
as a former elected official and citizen; Bruce W. Broderius,
as a former elected official and citizen; Trudy B. Brown, as
a citizen; Stephen A. Burkholder, as a former elected
official and citizen; Richard L. Byyny, as a citizen; Lois
Court, as an elected official and citizen; Richard E.
Ferdinandsen, as a former elected official and citizen;
Stephanie Garcia, as a former elected official and citizen;
Kristi Hargrove, as a citizen; Christopher J. Hansen, as an
elected official and citizen; Leslie Herod, as a an elected
official and citizen; Dickey Lee Hullinghorst, as a former
elected official and citizen; Nancy Jackson, as a former
elected official and citizen; William G. Kaufman, as a former
elected official and citizen; Claire Levy, as a former
elected official and citizen; Susan Lontine, as an elected
official and citizen; Margaret Markert, as a former elected
official and citizen; Megan J. Masten, as a citizen; Michael
Merrifield, as an elected official and citizen; Marcella L.
Morrison, as former elected official and citizen; John P.
Morse, as a former elected official and citizen; Pat Noonan,
as a former elected official and citizen; Ben Pearlman, as a
former elected official and citizen; Wallace Pullman, as a
citizen; Paul Weissmann, as an elected official and citizen;
and Joseph W. White, as an educator and citizen.
(Id. at ¶¶ 52-56, 59-65, 68, 70-71, 74-88,
allege that citizens have protectable interests in a
Republican form of government and in their elected
representatives discharging “inherently
legislative” functions such as taxation and
appropriation. (Id. at ¶ 95.) Plaintiffs allege
that TABOR has injured citizens by injuring their elected
representatives' responsibilities and authority.
(Id.) With respect to the educator-plaintiffs, it is
alleged that TABOR has injured them by impairing their
ability to properly educate students. (Id. at ¶
also allege that their injuries “will be further
clarified upon development of facts to be adduced at trial
and a judicial determination of the protections Plaintiffs
enjoy under the Guarantee Clause.” (Id. at
initial matter, the Court considers the motion requesting
oral argument (ECF No. 167). Having reviewed the motion to
dismiss, plaintiffs' response and defendant's reply
thereto, the motion requesting oral argument, and
defendant's response thereto, the Court DENIES the motion
requesting oral argument. The Court believes that the record
and arguments are sufficiently developed and ready for
resolution. So it is clear, to the extent arguments are made
in the motion requesting oral argument, the Court has
considered them in reaching its findings herein.
to the motion to dismiss, as indicated supra, the
Court believes that there are two essential groupings of
plaintiffs in this case: the political-subdivision
plaintiffs; and the plaintiffs who are elected officials,
educators, and/or citizens. The Court will deal with the
latter grouping first, and then the political-subdivision
Elected Officials, ...