WILLIAM J. MARTINEZ, District Judge.
This action challenges the constitutionality and legality of the Taxpayer's Bill of Rights ("TABOR"), an amendment to the Colorado Constitution passed by voter initiative in 1992. Among other provisions, TABOR prohibits the Colorado General Assembly from increasing tax rates or imposing new taxes without voter approval. Plaintiffs allege that, by taking away the General Assembly's power to tax, TABOR violates Colorado's constitutional and statutory obligations to maintain a republican form of government.
This matter is before the Court on Defendant's Motion to Dismiss. (ECF No. 18.) In the Motion, Defendant argues that
Having carefully analyzed the issues presented, the Court GRANTS IN PART and DENIES IN PART the Motion to Dismiss. The Court holds that the Plaintiffs who are current members of the Colorado General Assembly have standing to bring this action, and therefore the action is not subject to dismissal for lack of standing.
TABOR is codified in Article X,
Given that TABOR is part of the Colorado Constitution, it cannot be revoked or amended without voter approval. See Colo. Const. art. XIX, § 2, cl. (1) (provision of Colorado Constitution explaining how amendments to Constitution are adopted, and stating that proposed constitutional amendments "shall be submitted to the registered electors of the state for their approval or rejection [during a general election], and such as are approved by a majority of those voting thereon shall become part of this constitution"); id. art. XIX, § 1 (constitutional provision explaining how a constitutional convention is called, providing that voter approval must be obtained to hold the convention, and providing that voter approval is required for the adoption of any revisions, alterations, or amendments to the Constitution resulting from the convention); see also id. art. X, § 20, cl. (1) (provision of TABOR stating that "[o]ther limits on district revenue, spending, and debt may be weakened only by future voter approval").
For purposes of Defendant's Motion to Dismiss, the Court properly accepts as true the allegations in Plaintiffs' First Amended Substitute Complaint for Injunctive and Declaratory Relief (the "Operative Complaint"). (See "Legal Standards" section below.)
This action is brought by 33 Plaintiffs. (Id. ¶¶ 10-42.) Five Plaintiffs are current members of the Colorado General Assembly, four of whom are members of the Colorado House of Representatives and one of whom is a member of the Colorado Senate (the "Legislator-Plaintiffs"). (Id. ¶¶ 10, 22, 28, 31, 36.)
Plaintiffs' Operative Complaint states, "The purpose of this case is to seek a ruling that [TABOR] is unconstitutional because it deprives the state and its citizens of effective representative democracy, contrary to a Republican Form of Government as required under both the United States and Colorado Constitutions." (ECF No. 36, ¶ 8.) Plaintiffs explain their position that "[a]n effective legislative branch must have the power to raise and appropriate funds. When the power to tax is denied, the legislature cannot function effectively to fulfill its obligations in a representative democracy and a Republican Form of Government." (Id. ¶ 7.) They allege that TABOR has caused a "slow, inexorable slide into fiscal dysfunction [in Colorado]" (id. ¶ 3), and specifically allege that TABOR has constrained the state government's ability to comply with its constitutional obligation to adequately fund public education (id. ¶ 81). After reviewing some of TABOR's provisions (id. ¶¶ 75-77, 79), the Complaint states,
(Id. ¶ 80.)
Plaintiffs bring five claims for relief in the Operative Complaint:
(1) The "Guarantee Clause claim," alleging that TABOR violates Article IV, Section 4 of the United States Constitution (the "Guarantee Clause"). (Id. ¶ 82.) The Guarantee Clause provides that "[t]he United States shall guarantee to every State in this Union a Republican Form of Government...." U.S. Const. art. IV, § 4. Plaintiffs' Guarantee Clause claim alleges that, "[b]y removing the taxing power of the General Assembly, the TABOR amendment renders the Colorado General Assembly unable to fulfill its legislative obligations under a Republican Form of Government and violates the guarantee of Article IV, Section 4...." (ECF No. 36, ¶ 82.)
(2) The "Enabling Act claim," alleging that TABOR violates the Enabling Act of 1875 (the "Enabling Act"), the U.S. statute granting statehood to Colorado. (Id. ¶ 83.) The Enabling Act, inter alia, authorized the formation of "a constitution and State Government [for Colorado].... Provided, That the constitution shall be republican in form ... and not repugnant to the Constitution of the United States...." 18 Stat. 474 (1875). Plaintiffs' Enabling Act claim alleges that "the TABOR amendment violates the Enabling Act" because "[t]he Enabling Act's requirement for a Republican Form of Government entail[s] having and maintaining a fully effective legislature." (ECF No. 36, ¶ 83.)
(3) The "Supremacy Clause claim," alleging that TABOR violates Article VI of the United States Constitution (the "Supremacy Clause"). (Id. ¶ 84.) The Supremacy Clause provides that "[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. art. VI, cl. 2. Plaintiffs' Supremacy Clause claim alleges that TABOR is in "irresolvable conflict" with the
(4) The "Equal Protection claim," alleging that TABOR violates the Equal Protection Clause of the Fourteenth Amendment of United States Constitution. (Id. ¶ 85.) The Equal Protection Clause provides that "[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. Plaintiffs' Equal Protection claim alleges that, because TABOR violates the requirement of a Republican Form of Government, TABOR "den[ies] to Plaintiffs and others similarly situated the Equal Protection of the Laws...." (ECF No. 36, ¶ 85.)
(5) The "Impermissible Amendment claim," alleging, inter alia, that TABOR impermissibly amended the Colorado Constitution in violation of constitutionally superior provisions of the Colorado Constitution, specifically Article II, Section 2; Article V, Sections 31 and 32; and Article X, Section 2 of the Colorado Constitution. (Id. ¶¶ 87-92.)
Through this action, Plaintiffs seek an order rendering TABOR "null and void" and "prohibiting any [Colorado] state officer from taking any action whatsoever to effect the requirements and purposes of [TABOR]." (Id. at 20-21.)
Plaintiffs filed this action on May 23, 2011. (ECF No. 1.) On June 15, 2011, Plaintiffs filed an unopposed motion to amend the original Complaint in order to, inter alia, replace the State of Colorado as the named defendant with the Governor of Colorado, John Hickenlooper, in his official capacity. (ECF No. 9.) The Court granted the request (ECF No. 11), and Plaintiffs' Substituted Complaint for Injunctive and Declaratory Relief ("Substitute Complaint") was entered on June 16, 2011 (ECF No. 12).
On August 15, 2011, Defendant filed the Motion to Dismiss currently at issue. (ECF No. 18.) On October 11, 2011, Plaintiffs filed their Brief in Opposition to the Motion to Dismiss. (ECF No. 30.) On November 18, 2011, Defendant filed a Reply to Plaintiffs' Opposition. (ECF No. 51.) The Court has also allowed the filing of two amicus briefs, one filed by the Independence Institute (ECF No. 21-1),
On February 15, 2012, the Court held oral argument on Defendant's Motion to Dismiss. (ECF No. 68.) At the oral argument, the parties formally stipulated that the Motion to Dismiss is properly construed as moving to dismiss the Operative Complaint.
Because the parties in their briefing on the Motion to Dismiss and at oral argument disproportionately focused on the political question doctrine's applicability vel non to this action, the Court on February 17, 2012 ordered further briefing from the parties on issues related to Plaintiffs' standing to bring this action. (ECF No. 70.) On March 16, 2012, both sides filed supplemental briefs addressing the standing issues identified by the Court. (ECF No. 72, 73.)
Defendant's Motion to Dismiss is now ripe for adjudication.
Defendant's Motion to Dismiss is brought pursuant to Federal Rules of Civil Procedure 12(b)(1) (lack of subject-matter jurisdiction) and 12(b)(6) (failure to state a claim). There is some dispute between the parties regarding which of these two rules applies to each of Defendant's purported bases for dismissal. (See ECF No. 18, at 3-4; ECF No. 30, at 5-7; ECF No. 51, at
Under Federal Rule of Civil Procedure 12(b)(1), a party may move to dismiss a claim for lack of subject-matter jurisdiction. Rule 12(b)(1) challenges are generally presented in one of two forms: "[t]he moving party may (1) facially attack the complaint's allegations as to the existence of subject matter jurisdiction, or (2) go beyond allegations contained in the complaint by presenting evidence to challenge the factual basis upon which subject matter jurisdiction rests." Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074 (10th Cir.2004) (citation and quotation marks omitted). Where, as here, the defendant's motion to dismiss presents a facial attack on the existence of subject-matter jurisdiction, "the district court must accept the allegations in the complaint as true ... and construe the complaint in favor of [the plaintiffs]." United States v. Rodriguez-Aguirre, 264 F.3d 1195, 1203 (10th Cir.2001); see also Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) ("For purposes of ruling on a motion to dismiss for want of standing, ... courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party."). However, "[t]he burden of establishing subject matter jurisdiction is on the party asserting jurisdiction." Port City Props. v. Union Pac. R.R. Co., 518 F.3d 1186, 1189 (10th Cir.2008).
Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." In evaluating such a motion, a court must "assume the truth of the plaintiff's well-pleaded factual allegations and view them in the light most favorable to the plaintiff." Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir.2007). In ruling on such a motion, the dispositive inquiry is "whether the complaint contains `enough facts to state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Granting a motion to dismiss "is a harsh remedy which must be cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect the interests of justice." Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th Cir.2009) (quotation marks omitted).
The Court begins its analysis by evaluating Plaintiffs' standing to bring this action, and then proceeds to discuss whether the political question doctrine bars this action, in addition to the other arguments raised in Defendant's Motion to Dismiss. See Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 215, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974).
The Operative Complaint contains the following allegations regarding various Plaintiffs' purported standing to bring this action:
• "Several plaintiffs ... hold[] public office in certain state and local governmental bodies. The offices held by these plaintiffs are relevant to their standing in the case." (ECF No. 36, ¶ 9.)
• "In [Andy Kerr's] individual capacity as a citizen of the State of Colorado and in his capacity as a State Representative, he has standing to challenge the constitutionality of the TABOR amendment." (Id. ¶ 10.)
• "Certain plaintiffs in this case are past or sitting elected representatives in the General Assembly of the State of Colorado. As such, they have a direct and specific interest in securing to themselves, and to their constituents and to the state, the legislative core functions of taxation and appropriation. Other plaintiffs in this case include officers of counties, districts and municipalities which are dependent, under the state constitution, on the power of the legislature and their own powers to tax and appropriate." (Id. ¶ 43.)
• "Certain plaintiffs in this case are past or sitting elected officials of counties, cities, and school districts in the State of Colorado, jurisdictions whose abilities to tax are eliminated by TABOR." (Id. ¶ 44.)
• "Certain plaintiffs in this case are or have been educators employed by the State of Colorado or by various school districts. In addition to their interests as citizens of the state, they also have a specific interest in assuring that the legislature of the state can discharge its responsibilities to tax for the purpose of adequately funding core education responsibilities of the state as provided in Article IX, Section 2 of the Colorado Constitution." (Id. ¶ 45.)
• "Certain plaintiffs in this case are citizens of the State of Colorado, having a specific, protectable interest in assuring that their representatives can discharge the inherently legislative function of taxation and appropriation and an interest in assuring that the State of Colorado has a Republican Form of Government, as required by the United States Constitution." (Id. ¶ 46.)
In terms of the Legislator-Plaintiffs, Defendant argues that those Plaintiffs do not have standing to assert their claim that TABOR has caused a diminution of their political power, analogizing this case to Raines v. Byrd, 521 U.S. 811, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997), and distinguishing Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939). (ECF No. 51, at 5-7.) Plaintiffs, on the other hand, argue that the Legislator-Plaintiff have standing because "TABOR directly impacts their ability to fulfill their official responsibilities." (ECF No. 30, at 8.) The Legislator-Plaintiffs argue that their claim
In terms of citizen standing, Defendant argues that Plaintiffs as citizens of Colorado do not have standing because their claim is "a generally available grievance about government — claiming only harm to [their] and every citizen's interest in proper application of the Constitution and laws...." (ECF No. 18, at 15-16 (quoting Lance v. Coffman, 549 U.S. 437, 439, 127 S.Ct. 1194, 167 L.Ed.2d 29 (2007)).) In response, Plaintiffs liken their claim of citizen standing to Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), in which taxpayers bringing an Establishment Clause challenge were found to have standing. (ECF 30, at 10-11.) Defendant argues that Flast, a narrow exception to the general rule that taxpayers do not have standing, is inapplicable. (ECF No. 51, at 8-11.) The Court requested further briefing from the parties' regarding Lance's applicability to this action (ECF No. 70, at 3), which the parties have provided (ECF No. 72, at 9-14; ECF No. 73, at 10-13).
The parties' original briefing on the Motion to Dismiss focused only on legislative standing and citizen standing. Given the allegation in the Operative Complaint regarding the standing of educators (ECF No. 36, ¶ 45), the Court asked Plaintiffs to clarify whether they were alleging standing based on injury to educators, and asked the parties to brief whether standing would exist on that basis (ECF No. 70, at 3). In the supplemental briefing, Plaintiffs clarified that they do seek standing on that basis, and both sides provided argument on that issue. (ECF No. 72, at 14-17; ECF No. 73, at 16-19.)
The parties also disagree as to whether TABOR caused the injuries alleged, and whether a ruling in Plaintiffs' favor would redress those alleged injuries. (ECF No. 18, at 17-18; ECF No. 30, at 12-14; ECF No. 51, at 11-13.)
Article III of the United States Constitution limits the jurisdiction of federal courts to "[c]ases" and "[c]ontrover[ies]." U.S. Const. art. III, § 2. "No principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies." Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 37, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976).
"[T]he core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). "The gist of the question of standing" is whether the plaintiffs have "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Standing "is perhaps the most important of the[] doctrines" limiting the federal judicial power. Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984).
"[T]he irreducible constitutional minimum of standing contains three elements": (1) the plaintiff must have suffered a "concrete and particularized" injury
"The party invoking federal jurisdiction bears the burden of establishing these elements." Lujan, 504 U.S. at 561, 112 S.Ct. 2130.
Id. (citations, quotation marks, and brackets omitted).
Id. at 561-62, 112 S.Ct. 2130.
The Court first addresses the issue of whether the Legislator-Plaintiffs have standing to bring this action.
The United States Supreme Court has infrequently addressed the issue of legislative standing. One of the few cases in which it did so is Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939). There, twenty Kansas State Senators, among others, brought suit after a vote in the Kansas State Senate deadlocked at 20-20 (which ordinarily would mean the measure would not pass), but the State's Lieutenant Governor cast a deciding vote passing the measure. Id. at 435-36, 59 S.Ct. 972. The Court found standing based on the complete nullification of the effectiveness of those Senators' votes, explaining, "[the plaintiffs'] votes against ratification have been overridden and virtually held for naught although if they are right in their contentions their votes would have been sufficient to defeat ratification. We think that these senators have a plain, direct and adequate interest in maintaining the effectiveness of their votes." Id. at 438, 59 S.Ct. 972. The Court in Coleman ultimately ruled against the plaintiffs on the merits, affirming the Kansas Supreme Court's denial of mandamus. See id. at 437-56, 59 S.Ct. 972.
The Supreme Court more recently took up the issue of legislative standing in Raines v. Byrd, 521 U.S. 811, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997). In Raines, six members of the United States Congress challenged the constitutionality of
The Supreme Court in Raines began its analysis by laying out fundamental rules of standing, id. at 818-20, 117 S.Ct. 2312, and emphasized that "our standing inquiry has been especially rigorous when reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional," id. at 820, 117 S.Ct. 2312. Later in the decision, the Court again emphasized the importance of separation-of-powers concerns in the standing analysis, evaluating in depth instances during the nation's history when Members of Congress or the Executive declined to entangle the Judiciary in confrontations between Congress and the Executive branch. Id. at 826-28, 117 S.Ct. 2312.
The Raines Court then proceeded to analyze Coleman and another prior Supreme Court case in which a legislator was found to have standing, Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). In Powell, the Supreme Court held that the exclusion of a member of Congress from the House of Representatives (with a consequent loss of salary) presented a live "case or controversy." 395 U.S. at 512-14 & n. 35, 89 S.Ct. 1944. Raines distinguished Powell on two grounds. First, the Court stated that, unlike in Powell, the plaintiffs in Raines "ha[d] not been singled out for specially unfavorable treatment.... [Instead t]heir claim is that the Act causes a type of institutional injury (the diminution of legislative power), which necessarily damages all Members of Congress and both Houses of Congress equally." 521 U.S. at 821, 117 S.Ct. 2312. Second, the Court stated that, unlike in Powell, the Raines plaintiffs' "claim of standing is based on a loss of political power, not loss of any private right, which would make the injury more concrete." Id. The Court in Raines emphasized that the plaintiffs were suing in their official capacities rather than based on some private injury. Id.
Raines then turned to Coleman, identifying Coleman as "[t]he one case in which we have upheld standing for legislators (albeit state legislators) claiming an institutional injury." Id. (emphasis in original). After evaluating Coleman, the Court in Raines stated,
521 U.S. at 823, 117 S.Ct. 2312 (citation omitted). The Court then proceeded to explain why Coleman provided "little meaningful precedent" for the situation presented in Raines:
Id. at 824, 117 S.Ct. 2312. The Court ultimately stated, "There is a vast difference between the level of vote nullification at issue in Coleman and the abstract dilution of institutional legislative power that is alleged here. To uphold standing here would require a drastic extension of Coleman. We are unwilling to take that step." Id. at 826, 117 S.Ct. 2312.
In conclusion, the Court in Raines stated:
Id. at 829-30, 117 S.Ct. 2312 (some citations omitted).
In Schaffer v. Clinton, 240 F.3d 878 (10th Cir.2001), the Tenth Circuit discussed Raines and legislative standing. In Schaffer, Bob Schaffer, a member of the U.S. House of Representatives, brought suit challenging a statute authorizing cost of living adjustments ("COLAs") for Members of Congress, claiming that the statute violated the Twenty-Seventh Amendment to the Constitution.
Id. at 885-86 (citations, quotation marks, brackets, and ellipses omitted).
Raines identifies numerous issues to consider in determining whether legislators in a particular case have standing: whether the alleged injury is concrete or abstract; whether the legislators allege an institutional injury in their official capacities that is common to all members of the legislative body; whether the legislators have been authorized to bring suit on behalf of the legislative body; whether separation-of-powers concerns are present; whether the legislators have an adequate internal remedy within the legislative body; and whether declining standing to the legislators would foreclose any constitutional challenge to the disputed measure. See 521 U.S. at 829, 117 S.Ct. 2312. Raines also specifically stated, "Whether the case would be different if any of these circumstances were different [than those present in Raines ] we need not now decide." Id. at 829-30, 117 S.Ct. 2312. The Court will analyze these important standing considerations in turn.
Standing jurisprudence makes clear that the concreteness (versus abstractness) of an injury is one of the more important, if not the critical issue, governing the standing question. See Lujan, 504 U.S. at 560, 112 S.Ct. 2130; Schlesinger, 418 U.S. at 222, 94 S.Ct. 2925 ("To permit a complainant who has no concrete injury to require a court to rule on important constitutional issues in the abstract would create the potential for abuse of the judicial process, distort the role of the Judiciary in its relationship to the Executive and the Legislature and open the Judiciary to an arguable charge of providing `government by injunction.'"); Fed. Election Comm'n v. Akins, 524 U.S. 11, 24, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998) ("[W]here a harm is concrete, though widely shared, the Court has found `injury in fact.'"); Okpalobi v. Foster, 190 F.3d 337, 352 (5th Cir.1999) (stating that "the fundamental goal of the standing inquiry" is to "ensur[e] that litigants have a concrete stake in the outcome of the proceedings such that the issue will be framed properly").
In Raines, the Court did not engage in any extended discussion of why the injuries
Raines, 521 U.S. at 824-26, 117 S.Ct. 2312, 117 S.Ct. 2312. Raines based its holding, in part, on the ultimate conclusion that "institutional injury [that plaintiffs] allege is wholly abstract and widely dispersed (contra, Coleman)...." Id. at 829, 117 S.Ct. 2312.
In the Court's view, it is significant that Raines did not overrule Coleman, but instead reaffirmed that the "level of vote nullification" at issue in Coleman was sufficient to confer standing. Coleman involved a vote on one measure in which legislators' votes were "nullified." This action, on the other hand, challenges a state constitutional provision in effect for nearly twenty years, under which members of the Colorado General Assembly have not had the power to increase tax rates or approve new taxes without voter approval.
• "An effective legislative branch must have the power to raise and appropriate funds. When the power to tax is denied, the legislature cannot function effectively to fulfill its obligations in a representative democracy and a Republican Form of Government." (Id. ¶ 7.)
• "[T]axation and appropriation" are "legislative core functions." (Id. ¶ 43.)
• "[TABOR] removes entirely from the Colorado General Assembly any authority
• "A fully effective legislature is an essential component of a Republican Form of Government, as guaranteed to each state by [the Guarantee Clause]. By removing the taxing power of the General Assembly, the TABOR amendment renders the Colorado General Assembly unable to fulfill its legislative obligations under [the Guarantee Clause]." (Id. ¶ 83.)
• "The TABOR amendment has made the General Assembly ineffective by removing an essential function, namely the power to tax. In so doing, the TABOR amendment violates the Enabling Act." (Id. ¶ 84.)
At this early stage of the proceedings, the Court must accept as true that the Legislator-Plaintiffs have suffered a concrete injury. See Lujan, 504 U.S. at 561, 112 S.Ct. 2130 ("At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim."); see also Am. Tradition Inst. v. State of Colorado, 876 F.Supp.2d 1222, 1233, 2012 WL 2899064, at *6-*7 (D.Colo. July 17, 2012) (emphasizing importance of the stage of proceedings in denying motion to dismiss complaint based on claim that the plaintiffs lacked standing).
As alleged, this injury is of a greater magnitude than the single instance of vote nullification in Coleman, and is far more concrete than the alleged injury in Raines. The injury alleged here is a concrete injury involving the removal of a "core" legislative power of the General Assembly. The allegations of the Operative Complaint are of such a magnitude that the term "dilution of institutional power" appears insufficient to describe the alleged injury TABOR has effected on Plaintiffs' core representative powers. More importantly, the allegations of the Operative Complaint detail anything but an abstract dilution of power. As a consequence, the concreteness of the injury alleged here weighs in favor of finding standing.
Lujan, 504 U.S. at 561-62, 112 S.Ct. 2130. Other courts have applied this holding from Lujan in finding standing for legislators or legislative bodies. See Miller v. Moore, 169 F.3d 1119, 1122-23 (8th Cir. 1999) (finding standing where Nebraska voters passed ballot initiative intended to punish legislators who did not support and actively pursue the passage of congressional term limits); U.S. House of Representatives v. U.S. Dep't of Commerce, 11 F.Supp.2d 76, 89 (D.D.C.1998) (holding that House of Representatives had standing to challenge the Census Bureau's plan to use statistical sampling in the Census "because the House's composition will be affected by the manner in which the Bureau conducts the Census," and citing this holding from Lujan).
Here, the allegations of the Operative Complaint indicate that TABOR was specifically designed to take away from the General Assembly "the power to tax and [to] arrogat[e] that power to [the voters] themselves." (ECF No. 36, ¶ 1.) The Legislator-Plaintiffs, along with other members of the Colorado General Assembly, were the targeted objects of TABOR's design. See Bickel v. City of Boulder, 885 P.2d 215, 226 (Colo.1994) ("[TABOR's] requirement of electoral approval is not a grant of new powers or rights to the people, but is more properly viewed as a limitation on the power of the people's elected representatives.") (emphasis in original). That makes this case different than Raines, where the challenged action was the passage of a statute where the plaintiffs, although on the losing side of the vote, were not the targets of the action being challenged.
Thus, the concreteness and nature of the injury alleged here is distinguishable from the abstract injury alleged in Raines. Moreover, the Court finds that the injury alleged here is of greater magnitude than the single instance of vote nullification in Coleman. Both of these considerations weigh in favor of finding that the Legislator-Plaintiffs have standing in this action.
Raines repeatedly emphasized the importance of the fact that the plaintiffs there alleged an institutional injury in their official capacities, and not any personal injury differentiable from the injury suffered by all Members of Congress. See, e.g., 521 U.S. at 821, 117 S.Ct. 2312
As in Raines, the Legislator-Plaintiffs here clearly base their claim of standing on an institutional injury: TABOR's removal of the Colorado General Assembly's power to increase tax rates or impose new taxes without voter approval. The Legislator-Plaintiffs also clearly bring their claims in their official capacities as state legislators. (ECF No. 36, ¶¶ 9-10 ("The offices held by [the Legislator-Plaintiffs] are relevant to their standing in the case.... [They bring this action] in [their] capacity as [] State Representative[s].") The Legislator-Plaintiffs also concede that they have not been authorized to bring this action on behalf of the General Assembly. (Id. ¶ 9 ("[Plaintiffs do] not imply that the governmental bodies have themselves taken any official position regarding this litigation nor that these plaintiffs speak for those governmental bodies regarding this litigation.").
The law remains unclear regarding the situations in which an institutional legislative injury (where the plaintiffs legislators are not authorized to represent the legislative body) confers standing on legislators, and when it does not. Notably, in Coleman, the plaintiffs alleged an injury suffered in their official capacities, of an institutional nature, and they had not been authorized to bring suit on behalf of the Kansas Senate. The Supreme Court in Raines could have overruled Coleman and laid down a per se rule that legislators alleging an institutional injury, where the legislators have not been authorized to bring suit on behalf of the legislative body, never have standing to pursue such claims. Instead, Raines's treatment of Coleman was significantly more limited. After analyzing ways in which Coleman was distinguishable (including the presence or lack of an adequate internal legislative remedy), the Court in Raines expressed concern about pulling Coleman "too far from its moorings," and emphasized how significantly different the concreteness and magnitude of the injuries were. Raines, 521 U.S. at 825-26, 117 S.Ct. 2312 ("There is a vast difference between the level of vote nullification at issue in Coleman and the abstract dilution of institutional legislative power that is alleged here."). Also, although the Raines Court held that Coleman stands "at most" for the proposition that legislators have standing where their votes have been completely nullified (because their votes would have been successful but for the challenged action), that does not mean legislative standing can only be found to exist if the circumstances in Coleman are present. By analyzing Coleman in these ways, the Court in Raines provided less guidance to future lower courts, including this Court, regarding when an institutional legislative injury does or does not confer standing.
Given Raines's discussion of Powell, however, and much of the case law interpreting Raines,
In Raines, the Court's emphasis on separation-of-powers concerns was significant. Overlaying the entirety of the decision was the Court's initial statement that
Id. at 819-20, 117 S.Ct. 2312 (citations and quotation marks omitted). Also, later in the decision, the Court engaged in a detailed analysis of different times in the nation's history when Members of Congress or the Executive declined to entangle the Judiciary in confrontations between Congress and the Executive Branch. Id. at 826-28, 117 S.Ct. 2312. This historical discussion underscores the importance of separation of powers in the Raines Court's analysis. Further, it is notable that the Raines Court's initial statement regarding Coleman emphasized that Coleman was brought by state legislators, not federal legislators, further reiterating the importance of federal separation-of-powers concerns in the Court's analysis. Id. at 821, 117 S.Ct. 2312 ("The one case in which we have upheld standing for legislators (albeit state legislators) claiming an institutional injury is Coleman ....) (emphasis in original).
Indeed, the vast majority of case law addressing legislative standing involve cases in which the federal Judiciary is asked to resolve a dispute between the federal Executive and Legislative Branches.
The fact that this action does not present any separation-of-powers concerns, either between separate branches of the federal government or separate branches of the Colorado government, does not end this Court's inquiry into whether an equivalent concern warrants declining to hear this case: federalism.
Younger v. Harris, 401 U.S. 37, 44, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Where, however, it is state action which allegedly violates the U.S. Constitution, federalism concerns are reduced. See Valdivia v. Schwarzenegger, 599 F.3d 984, 991 n. 6 (9th Cir.2010) ("[P]rinciples of federalism do not permit a state to violate what this
In this regard, the Court finds it significant that TABOR was passed nearly twenty years ago.
Id. at 736-37, 84 S.Ct. 1459 (1964).
At this stage of the proceedings, this Court must assume the validity of Plaintiffs' allegations that TABOR is unconstitutional, and their allegations regarding the importance of the constitutional rights at issue. See Lujan, 504 U.S. at 561, 112 S.Ct. 2130. Given these accepted allegations, the fact that TABOR has been in effect for nearly twenty years counsels against the Court "staying its hand," and in favor of allowing the case to proceed without further delay.
With there being no separation-of-powers concerns in this case (unlike in Raines), and with federalism concerns diminished by the length of time TABOR has caused the alleged harms at issue (with those allegations being accepted as true at this stage of the proceedings), the Court finds that these considerations weigh in favor of finding legislative standing here.
TABOR was passed by the Colorado electorate by ballot initiative, without any involvement of the Colorado General Assembly. (ECF No. 36, ¶ 1.) Also, significantly, TABOR is an amendment to the
That distinction makes this case remarkably different from Raines. Indeed, in Raines the presence of an internal legislative remedy was one of the primary bases upon which the Court distinguished Coleman. See 521 U.S. at 824, 117 S.Ct. 2312. The removal of the Colorado General Assembly's power to independently pass any tax legislation, without any recourse available to that Assembly, places this case in stark contradistinction to the facts in Raines, in which various internal remedies were available to the plaintiffs.
Courts since the Raines decision have continued to emphasize the importance of the existence of a legislative remedy in legislative standing analysis. For example, in Kucinich v. Obama, 821 F.Supp.2d 110 (D.D.C.2011), the court denied standing to legislators who sought to challenge the President's authorization of military action in Libya without congressional approval. Analyzing Raines and Coleman, the court concluded that for legislative standing to exist,
Kucinich, 821 F.Supp.2d at 119-20.
The importance of the presence of a potential internal legislative remedy makes sense, because this consideration is directly tied to federal separation-of-powers concerns. See, e.g., Leach v. Resolution Trust Corp., 860 F.Supp. 868, 875 (D.D.C.1994) (stating that courts should be "reluctant to meddle in the internal affairs of the legislative branch" due to separation-of-powers concerns). If a legislator has an adequate internal remedy, he should not be challenging a decision of the legislature in an Article III court. Instead, he should work within his own legislature to enact a remedy. Those concepts are entirely inapplicable here. The fact that Colorado voters enacted TABOR in 1992, with members of the Colorado General Assembly having no effective recourse to legislatively prevent its passage or undo its effects, weighs heavily in favor of finding legislative standing in this case.
Without discussing the issue during most of the decision, the Supreme Court at the end of the Raines decision also "note[d]" that its decision to deny legislative standing would not "foreclose[] the [Line Item Veto] Act from constitutional challenge (by someone who suffers judicially cognizable injury as a result of the Act)." 521 U.S. at 829, 117 S.Ct. 2312. The weight of Supreme Court jurisprudence on this point, however, makes clear that this issue is irrelevant: standing cannot be found merely because there is no other plaintiff who would have standing. See Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 489, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) ("`[T]he assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing.' This view would convert standing into a requirement that must be observed only when satisfied. Moreover, we are unwilling to assume that injured parties are nonexistent simply because they have not joined respondents in their suit.") (quoting Schlesinger, 418 U.S. at 227, 94 S.Ct. 2925); United States v. Richardson, 418 U.S. 166, 179, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974) ("It can be argued that if respondent is not permitted to litigate this issue, no one can do so. In a very real sense, the absence of any particular individual or class to litigate these claims gives support to the argument that the subject matter is committed to the surveillance of Congress, and ultimately to the political process."); see also State of Utah v. Babbitt, 137 F.3d 1193, 1202 (10th Cir.1998). Given this precedent, the Court declines to place any weight on the possibility that if the Legislator-Plaintiffs were denied standing, there might be no other plaintiff who would have standing to bring an action in federal court challenging TABOR.
This action involves an alleged institutional legislative injury asserted by legislators suing in their official capacities, but who have not been authorized to bring this action on behalf of their respective legislative bodies. These factors are of considerable significance in determining whether the Legislator-Plaintiffs have standing to pursue this action.
The Court therefore concludes that the Legislator-Plaintiffs have, at this early stage of the proceedings, advanced sufficient allegations of a cognizable injury in fact sufficient to confer Article III standing.
Having determined that the Legislator-Plaintiffs have sufficiently alleged injury in fact, the Court has little trouble concluding that the remaining causation and redressability elements for legislative standing are also met at the pleading stage. Lujan, 504 U.S. at 561, 112 S.Ct. 2130. Plaintiffs have sufficiently alleged that the passage of TABOR and resulting amendment of the Colorado Constitution directly and proximately caused the harm of which Plaintiffs complain: the removal of the Colorado General Assembly's power to raise tax rates or impose new taxes without separate voter approval. (ECF No. 36, ¶¶ 1, 6-8.) See also Colo. Const. art. X, § 20, cls. (2)(b), (4)(a). Thus, as Plaintiffs also allege, it would appear to easily follow that the invalidation of TABOR would remove the requirement that a tax rate increase or new tax passed by the General Assembly obtain separate voter approval prior to becoming law. See Sierra Club v. Young Life Campaign, Inc., 176 F.Supp.2d 1070, 1084-85 (D.Colo.2001) (accepting general allegations of causation and redressability at the pleading stage); Am. Tradition Inst., 876 F.Supp.2d at 1234-35, 2012 WL 2899064, at *7 (same).
The Court therefore concludes that, at this stage of the litigation, the Legislator-Plaintiffs have constitutional standing.
Neither in the Motion to Dismiss nor in the Reply brief does Defendant specifically argue that the Court should dismiss this action based on prudential standing principles. Defendant's Supplemental Brief, however, contains a brief section arguing that dismissal is warranted based on the prudential standing principle that federal courts should refrain from resolving "abstract questions of wide public significance." (ECF No. 73, at 23-24.)
"Beyond the constitutional requirements [for standing], the federal judiciary has also adhered to a set of prudential principles that bear on the question of standing." Valley Forge Christian Coll., 454 U.S. at 474, 102 S.Ct. 752; see also Allen, 468 U.S. at 751, 104 S.Ct. 3315 (describing prudential standing principles as "judicially self-imposed limits on the exercise of federal jurisdiction"). First, "when the asserted harm is a `generalized grievance' shared in substantially equal measure by all or a large class of citizens, that harm alone normally does not warrant exercise of jurisdiction." Warth, 422 U.S. at 499, 95 S.Ct. 2197. Second, "even when the plaintiff has alleged injury sufficient to meet the `case or controversy' requirement,... the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." Id.
The prudential standing principle that federal courts should refrain from resolving "abstract questions of wide public significance" — the basis on which Defendant tardily seeks dismissal — might arguably be applicable to Plaintiffs' claim that they have standing as citizens of Colorado. However, the Court declines to reach the issue of whether Plaintiffs as citizens have standing in that capacity. (See infra.) In terms of the Legislator-Plaintiffs (five of whom have brought this action and where there are a total of 100 members of the Colorado General Assembly), the Court declines to dismiss this action based on the prudential standing principle barring adjudication of "abstract questions of wide public significance." Accepting the Operative Complaint's allegations as true, TABOR was an action targeted at the 100-member General Assembly. The injury alleged by the Legislator-Plaintiffs is not a "generalized grievance shared in substantially equal measure by all or a large class of citizens." Warth, 422 U.S. at 499, 95 S.Ct. 2197 (emphasis added); see also Akins, 524 U.S. at 23, 118 S.Ct. 1777 ("Whether styled as a constitutional or prudential limit on standing, the Court has sometimes determined that where large numbers of Americans suffer alike, the political process, rather than the judicial process, may provide the more appropriate remedy for a widely shared grievance.") (emphasis added). The prudential standing principle barring adjudication of "generalized grievances" or "abstract questions of wide public significance" does not apply to the Legislator-Plaintiffs' claims.
Likewise, no other prudential standing principle bars this action, and Defendant has not asserted as much. First, the principle prohibiting a litigant from raising another person's legal rights does not apply. The Operative Complaint's allegations, accepted as true, indicate that TABOR was directly targeted at taking away the power of members of the General Assembly to independently enact tax legislation. See Lujan, 504 U.S. at 561-62, 112 S.Ct. 2130 ("[If] the plaintiff is himself an object of the action (or forgone action) at issue ..., there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it."). And second, the zone of interests test does not bar this action, at least at this early stage of the proceedings. In terms of that test, the Court has found little to no case law authority indicating who falls within the zone of interests intended to be protected by the Guarantee Clause and Enabling Act. See Largess v. Supreme Judicial Court for the State of Mass., 373 F.3d 219, 228 n. 9 (1st Cir.2004) (citing authorities discussing question of whether the Guarantee Clause confers judicially cognizable rights on individuals as well as states). As to the Supremacy Clause, the Tenth Circuit recently declined to decide who falls within the zone of interests test, but pointed to case law from other Circuits in which courts held that consideration of prudential standing is unnecessary in Supremacy Clause challenges. See Wilderness Soc'y v. Kane Cnty., Utah, 632 F.3d 1162, 1170 (10th Cir.2011) (citing cases). Given the lack of precedent, the Court will err on the side of finding that the zone-of-interests test is met here. See Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, ___ U.S. ___, 132 S.Ct. 2199, 2210, 183 L.Ed.2d 211 (2012) (stating that
On these grounds, the Court concludes that prudential standing principles do not bar the Legislator-Plaintiffs at this stage of the proceedings.
Because the Court holds that the Legislator-Plaintiffs have standing to pursue this action, the Court need not, and declines to, address whether any other Plaintiffs have standing. See Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264 & n. 9, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) ("[Because] we have at least one individual plaintiff who has demonstrated standing ..., we need not consider whether the other individual and corporate plaintiffs have standing to maintain the suit."); Sec'y of the Interior v. California, 464 U.S. 312, 319 n. 3, 104 S.Ct. 656, 78 L.Ed.2d 496 (1984) ("Since the State of California clearly does have standing, we need not address the standing of the other respondents, whose position here is identical to the State's."); cf. Horne v. Flores, 557 U.S. 443, 129 S.Ct. 2579, 2592, 174 L.Ed.2d 406 (2009) ("Because the superintendent clearly has standing to challenge the lower courts' decisions, we need not consider whether the Legislators also have standing to do so.").
Defendants also argue that the political question doctrine bars all of Plaintiffs' claims brought in the Operative Complaint.
"The political question doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch." Japan Whaling Ass'n v. Am. Cetacean Soc'y, 478 U.S. 221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986); see also United States v. Munoz-Flores, 495 U.S. 385, 394, 110 S.Ct. 1964, 109 L.Ed.2d 384 (1990) (stating that the political question doctrine "is designed to restrain the Judiciary from inappropriate interference in the business of the other branches of Government"); Baker v. Carr, 369 U.S. 186, 210, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) ("The nonjusticiability of a political question is primarily a function of the separation of powers."). The basis for the doctrine is that "courts are fundamentally underequipped to formulate national policies or develop standards for matters not legal in nature." Japan Whaling, 478 U.S. at 230, 106 S.Ct. 2860 (quotation marks omitted). It is a "judicially created" doctrine (not an express constitutional or statutory provision), In re Nazi Era Cases Against German Defendants Litig., 196 Fed.Appx. 93, 97 (3d Cir.2006), having its roots in case law dating back to Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803).
The six widely recognized tests for determining whether a particular case presents a non-justiciable political question come from Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). There, the Court stated,
Id. at 217, 82 S.Ct. 691 (bolded numbering added by this Court). The Baker Court continued,
Id. Baker further emphasized, "The cases we have reviewed show the necessity for discriminating inquiry into the precise facts and posture of the particular case, and the impossibility of resolution by any semantic cataloguing." Id.; see also id. at 210-11, 82 S.Ct. 691 ("Much confusion results from the capacity of the `political question' label to obscure the need for case-by-case inquiry. Deciding whether [the political question doctrine applies] is itself a delicate exercise in constitutional interpretation ...."); id. at 210, 82 S.Ct. 691 ("the attributes of the [political question] doctrine ... in various settings, diverge, combine, appear, and disappear in seeming disorderliness").
The parties' arguments, particularly those of Defendant, regarding the applicability vel non of the political question doctrine to this action focus on Plaintiffs' First Claim for Relief in the Operative Complaint, the Guarantee Clause Claim. Plaintiffs' Guarantee Clause claim alleges that, "[b]y removing the taxing power of the General Assembly, the TABOR amendment renders the Colorado General Assembly unable to fulfill its legislative obligations under a Republican Form of Government and violates the guarantee of Article IV, Section 4...." (ECF No. 36, ¶ 82.)
In moving to dismiss Plaintiffs' Guarantee Clause claim, Defendant argues that this case is directly on point with Pacific States Telephone & Telegraph Co. v. State of Oregon, 223 U.S. 118, 32 S.Ct. 224, 56 L.Ed. 377 (1912), a U.S. Supreme Court case holding that a Guarantee Clause challenge to Oregon's ballot initiative system was barred by the political question doctrine. Defendant also argues that all of the six tests identified in Baker v. Carr for whether a case presents a non-justiciable political question are met here.
In response, Plaintiffs (and the amici Professors) argue that Pacific States is distinguishable, because that case involved
The United States Supreme Court's most recent pronouncement regarding the applicability of the political question doctrine to Guarantee Clause claims came in 1992 in New York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992). There, the Court reviewed the history of court decisions and other sources addressing the issue of whether Guarantee Clause claims are barred by the political question doctrine. Id. at 184-85, 112 S.Ct. 2408. The Court first pointed out a substantial line of cases, beginning with Luther v. Borden, 48 U.S. 1, 7 How. 1, 12 L.Ed. 581 (1849), that "metamorphosed into the sweeping assertion" that Guarantee Clause claims are per se non-justiciable. New York, 505 U.S. at 184, 112 S.Ct. 2408.
This Court proceeds to conduct its own, albeit non-exhaustive, historical analysis of the case law on the topic. In Luther v. Borden, 48 U.S. 1, 7 How. 1, 12 L.Ed. 581 (1849) ("Luther"), the Supreme Court was asked to decide whether the charter government of Rhode Island, or a competing faction, was the legitimate government of Rhode Island. The Court ultimately held that the case could not be heard in the courts because "it rests with Congress to decide what government is the established one in a State. For as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not." Id. at 42. The Luther Court also pointed out that the President had already recognized the charter government by agreeing to assist it with military force if the need should arise, and that courts in Rhode Island had also recognized the charter government's authority. Id. at 40, 43-44. The Luther Court further emphasized, among other things, that there were no judicially manageable standards to resolve the dispute, and that the Court was being asked to make a political decision. Id. at 41.
New York emphasized that the "limited" holding in Luther — that it rests with Congress to decide what government is the established one in a state — subsequently began "metamorphos[izing] into the sweeping assertion" that Guarantee Clause claims are per se non-justiciable. New York, 505 U.S. at 184, 112 S.Ct. 2408; see also Akhil Reed Amar, The Central Meaning of Republican Government: Popular
The next significant U.S. Supreme Court decision in this area is Pacific States Telephone & Telegraph Co. v. State of Oregon, 223 U.S. 118, 32 S.Ct. 224, 56 L.Ed. 377 (1912) ("Pacific States"). This is the case focused on most heavily by the parties, with Defendant arguing that the case is on point, and Plaintiffs arguing that it is distinguishable. In that case, Pacific States Telephone & Telegraph Co. challenged a corporate tax passed by voter initiative. Through the framing of the issues, the U.S. Supreme Court was asked to decide whether Oregon's entire voter initiative system violated the Guarantee Clause. The Court in Pacific States analyzed the Luther opinion and concluded that "[i]t was long ago settled that the enforcement of th[e] guaranty [of a republican form of government] belonged to the political department." Id. at 149, 32 S.Ct. 224. Applying Luther, the Court continued,
Id. at 150-51, 32 S.Ct. 224. Based on this rationale, the Court held that the challenge to Oregon's ballot initiative system presented a non-justiciable political question. Id. at 151, 32 S.Ct. 224.
In Colegrove v. Green, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432 (1946) ("Colegrove"), the Supreme Court was asked to intervene in a dispute regarding the apportionment of legislative districts within Illinois. The Court held that the issue was political and non-justiciable. "To sustain this action would cut very deep into the very being of Congress. Courts ought not to enter this political thicket. The remedy for unfairness in districting is to secure State legislatures that will apportion properly, or to invoke the ample powers of Congress." Id. at 556, 66 S.Ct. 1198. Citing to Pacific States, the Court in Colegrove again enunciated the broad rule called into question in New York: "Violation of the great guaranty of a republican form of government in States cannot be challenged in the courts." Id.
The next case discussing the justiciability of Guarantee Clause claims is the foundational case for the political question doctrine, Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) ("Baker").
Between the Baker decision in 1962 and the 1992 New York decision, the Supreme Court did not address in detail the justiciability of Guarantee Clause cases. Two years after the Baker decision, the Court in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), cited Baker and stated, "some questions raised under the Guaranty Clause are nonjusticiable, where [they are] `political' in nature and where there is a clear absence of judicially manageable standards." Id. at 582, 84 S.Ct. 1362 (emphasis added). This is the case cited by the New York Court for the proposition that "[m]ore recently, the Court has suggested that perhaps not all claims under the Guarantee Clause present nonjusticiable political questions." 505 U.S. at 185, 112 S.Ct. 2408.
That brings this Court back to the Supreme Court's most recent pronouncement of the issue in New York, in which the Supreme Court called into question the cases adopting a per se rule that Guarantee Clause claims are not justiciable. In addition to looking at controlling precedent from the U.S. Supreme Court, this Court also looks for binding precedent from the Tenth Circuit. Significantly, two recent Tenth Circuit decisions have discussed the fact that New York called into question the idea that Guarantee Clause claims are per se non-justiciable. In Kelley v. United States, 69 F.3d 1503 (10th Cir.1995), the Tenth Circuit described the New York decision, pointing out that "there has been some belief that violations of the Guarantee Clause cannot be challenged in the courts," but also pointing out that "it has [been] suggested, in more recent opinions, that this belief may be incorrect." Id. at 1510. Like New York, the Court in Kelley did not resolve the issue: "Assuming, without deciding, that plaintiffs' claim is justiciable, there appears to be no merit to it." Id. at 1511. Then, in Hanson v. Wyatt, 552 F.3d 1148 (10th Cir.2008), the Tenth Circuit briefly identified Colegrove's holding that Guarantee Clause claims cannot be raised in court, and then stated, "[t]he New York court, however, was not so sure about that. It decided not to resolve the matter on justiciability grounds. Rather, it assumed justiciability and rejected the claim on the merits." Id. at 1163 (emphasis in original).
New York, Kelley, and Hanson provide little to no guidance to this Court regarding whether the political question doctrine bars the particular Guarantee Clause claim being raised in this action, a claim based on unique allegations involving TABOR and its effects. However, given this recent U.S. Supreme Court and Tenth Circuit case law seriously calling into question the propriety of applying a per se rule of non-justiciability in Guarantee Clause cases, the Court determines that it cannot summarily conclude that Plaintiffs' Guarantee Clause claim is per se non-justiciable. See Trimble v. Gordon, 430 U.S. 762, 776 n. 17, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977) ("To the extent that our analysis in this case differs from [a previous case] the more recent analysis controls."); Peoples v. CCA Detention Ctrs., 422 F.3d 1090, 1102 (10th Cir.2005) ("We ... think it prudent to follow the Court's most recent pronouncement on the issue.").
The Court concludes that Pacific States is not controlling here. The way the issues were framed in Pacific States led the Court there to consider whether the entire voter initiative system in Oregon violated the Guarantee Clause. Similarly, Defendant in this case tries to characterize Plaintiffs' Guarantee Clause claim as challenging the entire initiative process in Colorado. (See, e.g., ECF No. 18, at 2 ("[W]hile [Plaintiffs'] policy preferences lead them to focus their ire on one particular instance of direct democratic participation in Colorado, the Taxpayers' Bill of Rights, their arguments ultimately would require the Court to hold unconstitutional all forms of direct citizen lawmaking."). So framed, Defendant has little trouble arguing that Pacific States controls. Indeed, the Court would agree that it would be appropriate to apply Pacific States in an action brought under the Guarantee Clause challenging Article V, Section 1, Clause 2 of the Colorado Constitution, the clause reserving in Colorado voters the power of the initiative process.
This action, however, seeks not the invalidation of Colorado's ballot initiative system. Plaintiffs, in fact, seek only to invalidate one particular measure passed via the Colorado voter initiative process: TABOR. (See ECF No. 36, at 20-21 (prayer for relief seeking invalidation of
Given that the Court declines to adopt a per se rule of non-justiciability in Guarantee Clause cases, and given that Pacific States is not controlling, the Court finds it appropriate to apply the widely-recognized Baker tests to determine whether Plaintiffs' Guarantee Clause claim is barred by the political question doctrine. See Baker, 369 U.S. at 217, 82 S.Ct. 691 ("The cases we have reviewed show the necessity for discriminating inquiry into the precise facts and posture of the particular case, and the impossibility of resolution by any semantic cataloguing.").
Addressing the first Baker test of whether there is "a textually demonstrable constitutional commitment of the issue to a coordinate political department," Defendant argues that there is a textually demonstrable commitment of Guarantee Clause disputes to a coordinate political department, namely, Congress. (ECF No. 51, at 18-19.) Defendant purports to support that argument by citing to Luther and Pacific States, arguing that "[t]he Supreme Court has long been clear that the question of what constitutes a republican form of government is committed to Congress." (Id. at 19.) But "textually demonstrable" means demonstrable from the text of the constitution itself, not from case law interpreting the constitutional text. See Nixon v. United States, 506 U.S. 224, 228, 113 S.Ct. 732, 122 L.Ed.2d 1 (1993) ("[C]ourts must, in the first instance, interpret the text in question and determine whether and to what extent the issue is textually committed [to a coordinate branch of government].") (emphasis added); Powell, 395 U.S. at 519-20, 89 S.Ct. 1944 ("In order to determine whether there has been a textual commitment to a coordinate department of the Government,
Although Defendant also baldly argues that "[t]he text of the Guarantee Clause... definitively commit[s] this question to Congress," that assertion is not correct. Again, the Guarantee Clause provides, "The United States shall guarantee to every State in this Union a Republican Form of Government...." The implication in the Guarantee Clause that the "United States" will enforce this guarantee of a republican form of government in no way specifies whether enforcement will lie in the Legislative, Executive, or Judicial Department of the U.S. government. See Wang v. Masaitis, 416 F.3d 992, 996 (9th Cir.2005) (stating that there was no textually demonstrable commitment to a coordinate political branch because "the text [in question] is silent" regarding any such commitment); cf. Nixon, 506 U.S. at 229-36, 113 S.Ct. 732 (holding that constitutional clause providing that "[t]he Senate shall have the sole Power to try all Impeachments" constituted a textually demonstrable commitment of that issue to the Senate). Also, importantly, the Guarantee Clause is included within Article IV of the Constitution, the Article entitled "The States." Thus, it does not fall under Article I (specifying Congress's powers), Article II (specifying the Executive's powers), or Article III (specifying the Judiciary's powers).
Plainly, there is no textually demonstrable commitment of this issue to Congress or to the Executive Department. Thus, this Baker test is not met and does not indicate the political question doctrine's applicability to this case.
The second Baker test, asking whether there are judicially discoverable and manageable standards for resolving a plaintiff's claim, gives this Court some pause.
As previously discussed, the U.S. Supreme Court has focused on the justiciability of Guarantee Clause challenges, providing little guidance to lower courts regarding actual standards for resolving Guarantee Clause claims on the merits. Also, in Largess v. Supreme Judicial Court for the State of Mass., 373 F.3d 219 (1st Cir.2004), the First Circuit pointed out that "scholars have interpreted ... the Guarantee Clause in numerous, often conflicting, ways." Id. at 226 (citing various law review articles). The Largess Court also noted that "John Adams himself, twenty years after ratification of the Constitution, confessed that he `never understood' what the Guarantee Clause meant and that he `believ[ed] no man ever did or ever will.'" Id. at 226-27 (citing letter written by Adams in 1807). However, the Largess Court ultimately found sufficient standards for interpreting the Guarantee Clause, concluding that the plaintiffs' Guarantee Clause challenge in that case lacked merit. See id. at 227-29. Notably, the Independence Institute's amicus brief argues the merits of Plaintiffs' Guarantee Clause claim, indicating its belief that there are sufficiently clear standards for dismissing Plaintiffs' Guarantee Clause claim on the merits. (ECF No. 21-1.) See also Zivotofsky ex rel. Zivotofsky v. Clinton, ___ U.S. ___, 132 S.Ct. 1421, 1428, 182 L.Ed.2d 423 (2012) (stating that the judicially manageable standards for determining the constitutionality of the statute in question were evidenced by the detailed legal arguments made by both sides on the issue).
At this early stage of the proceedings, the Court cannot resolve the issue of whether there will be judicially discoverable and manageable standards for evaluating Plaintiffs' Guarantee Clause claim. At the very least, the Court is comfortable at this early stage in concluding that this Baker test is not "inextricable from" this case. See Baker, 369 U.S. at 217, 82 S.Ct. 691 ("Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for non-justiciability on the ground of a political question's presence.").
The third Baker test asks whether it is possible for a court to resolve a plaintiff's claim "without [making] an initial policy determination of a kind clearly for nonjudicial discretion."
As to this test, Defendant's argument focuses entirely on Plaintiffs' motives in bringing this action — that Plaintiffs only brought this particular action because of their own values and judgments that TABOR is bad public policy. (ECF No. 18, at 8-9; ECF No. 51, at 20-21.) However, notwithstanding Plaintiffs' personal motivations for bringing this particular action, this Baker test concerns whether the Court itself will be required to make a policy determination in resolving the claims. The question of whether TABOR violates Colorado's obligation to maintain a republican form of government is a question requiring interpretation of the Guarantee Clause. A court's interpretation of the Constitution does not constitute a policy determination, but instead a legal determination that courts are well-positioned to resolve. See Marbury, 5 U.S. (1 Cranch) at 177 ("It is emphatically the province and duty of the judicial department to say what the law is."); Powell, 395 U.S. at 548, 89 S.Ct. 1944 (in finding the political question
That makes this case entirely distinguishable from the types of cases involving non-justiciable policy determinations soundly committed to the political branches of government. See, e.g., Schroder v. Bush, 263 F.3d 1169, 1174 (10th Cir.2001) ("Appellants' request that courts maintain market conditions, oversee trade agreements, and control currency ... would require courts to make [non-justiciable] policy determinations...."); Ad Hoc Comm. on Judicial Admin. v. Commonwealth of Massachusetts, 488 F.2d 1241, 1245 (1st Cir.1973) (finding non-justiciable a policy determination regarding the financing of the judicial branches, an issue that has "been left to the people, through their legislature"); Orlando v. Laird, 443 F.2d 1039, 1044 (2d Cir.1971) (in action challenging war in Vietnam, court stated, "[D]ecisions regarding the form and substance of congressional enactments authorizing hostilities are determined by highly complex considerations of diplomacy, foreign policy and military strategy inappropriate to judicial inquiry.").
The Court thus finds that the third Baker test does not apply to the case at bar.
The fourth Baker test requires the Court to consider whether it is possible to undertake resolution of this action "without expressing lack of the respect due coordinate branches of government."
As to this test, Defendant first argues that the Court's consideration of Plaintiffs' Guarantee Clause claim would express a lack of respect due to the U.S. Congress. (ECF No. 18, at 9; ECF No. 51, at 22-23.) In support of that argument, Defendant cites cases in which courts have held that questions arising under the Guarantee Clause are to be decided by Congress, not the federal Judiciary. (Id.) However, the Court has already determined that, at this early stage of the proceedings, it is not appropriate to apply those cases' per se rules of non-justiciability. Thus, there is still a question whether Plaintiffs' Guarantee Clause claim can be decided by the Court, or whether the decision should be deferred to Congress. Further, the Court again finds it of some import that TABOR has been in effect for nearly twenty years, and the Court is not aware of Congress ever having taken a position on TABOR's constitutionality. While silence could indicate approval, the Court cannot so presume. See Hanson v. Wyatt, 552 F.3d 1148, 1164 (10th Cir.2008) ("It may be worth noting that neither New York's treatment of the Guarantee Clause issue in that case nor our resolution of [this case] is likely to raise any concern in the political branches about the courts' violating their turf.").
Defendant also argues that this Court should defer to decisions of the Colorado Supreme Court which have addressed TABOR: Zaner v. City of Brighton, 917 P.2d 280 (Colo.1996) ("Zaner"), and Bickel v. City of Boulder, 885 P.2d 215 (Colo.1994) ("Bickel"). (ECF No. 51, at 22; see also ECF No. 18, at 11.) If the Colorado Supreme Court had addressed a Guarantee Clause challenge to TABOR, this Court would now likely defer to that Court's interpretation of the U.S. Constitution. See Trans Shuttle, Inc. v. Pub. Utils. Comm'n, 24 Fed.Appx. 856, 859 (10th Cir. 2001) ("One of the fundamental policies underlying the Younger doctrine is the recognition that state courts are fully competent to decide federal constitutional
And finally, Defendant suggests that this Court must defer to the will of the Colorado electorate itself in enacting TABOR. As a foundational matter, the political question doctrine's applicability in a particular case is lessened or eradicated when the action challenges an act of a state. See Baker, 369 U.S. at 210, 82 S.Ct. 691 ("[I]n the Guaranty Clause cases and in the other `political question' cases, it is the relationship between the judiciary and the coordinate branches of the Federal Government, and not the federal judiciary's relationship to the States, which gives rise to the `political question.'"); L.A. Cnty. Bar Ass'n v. Eu, 979 F.2d 697, 701-02 (9th Cir.1992) ("[T]he political question doctrine arises primarily from concerns about the separation of powers within the federal government.... Accordingly, the doctrine has at best limited applicability to actions challenging state statutes as violative of the federal Constitution."). Also, as the Court's previous discussion of Lucas indicates, the Court cannot defer to the will of a state's electorate when it passes an allegedly unconstitutional ballot initiative, particularly when that law has been in effect for nearly twenty years. See also Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (invalidating amendment to Colorado Constitution passed by ballot initiative prohibiting all legislative, executive, or judicial action designed to protect homosexuals).
Although the fourth Baker test presents more difficult and sensitive issues, the Court finds that the test is not met here.
Regarding the issue of whether this case presents "an unusual need for unquestioning adherence to a political decision already made," Defendant argues that "[t]wenty-six states now use some form of direct democracy, and countless laws and constitutional provisions have been instituted through these mechanisms.... Plaintiffs' argument, if accepted, would call into question all of these provisions, and all of the countless laws enacted under them." (ECF No. 18, at 10; see also ECF No. 51, at 23-24.)
The Court has already addressed and rejected Defendant's argument that this action is properly interpreted as a frontal attack on Colorado's entire ballot initiative process. Thus, Defendant's more incredible argument that this action should be construed as an attack on the ballot initiative systems in place in twenty-six states in this country is similarly and even more appropriately rejected. Thus, Defendant's concern regarding the continuing validity of laws enacted via ballot initiative (other than TABOR, of course) is also unfounded. And significantly, in terms of Plaintiffs' actual challenge to TABOR itself, it warrants mentioning that laws are not enacted pursuant to TABOR. Instead, TABOR
The Court therefore concludes that the fifth Baker test is not met here.
As for the sixth and final Baker test, Defendant again repeats the mantra that this action challenges the entire ballot initiative process, a process repeatedly upheld by state and federal decision-makers. (See ECF No. 18, at 10 ("[A] court pronouncement in favor of Plaintiff would be in conflict with the views of various state and federal departments on ... whether direct democracy is incompatible with a republican form of government.... Congress... has never questioned the practice of state direct democracy.... State courts and legislators have likewise upheld and relied upon citizen-initiated or approved laws.").) Defendant also again cites Zaner and Bickel for the proposition that TABOR has already been upheld. (Id. at 11; ECF No. 51, at 24.) For the aforementioned reasons, those arguments are rejected. The sixth Baker test is also not met in this case.
In summary, there is no basis to conclude, at this stage of the proceedings, that any of the six Baker tests are "inextricable from the case at bar." 369 U.S. at 217, 82 S.Ct. 691. Thus, the Court concludes it is not appropriate to dismiss Plaintiffs' Guarantee Clause claim at this stage as non-justiciable under the political question doctrine.
Defendant's Motion to Dismiss includes little argument as to why the Enabling Act in particular should be dismissed, saying only in a footnote that "[t]he rationale applied by the Supreme Court to Guarantee Clause claims therefore applies with equal force to Plaintiffs' claims brought under the Colorado Enabling Act," and citing the fact that Pacific States included an Enabling Act claim. (ECF No. 18, at 6 n. 4.)
However, the fact that Plaintiffs' Enabling Act claim is a statutory claim leads the Court to conclude that it would have jurisdiction to hear that claim even if the Guarantee Clause claim were held to be non-justiciable under the political question doctrine. In Japan Whaling Ass'n v. Am. Cetacean Soc'y, 478 U.S. 221, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986), wildlife conservation groups brought an action challenging an executive agreement between Japanese and U.S. officials that allegedly violated a U.S. statute requiring sanctions for violations of whale harvesting quotas. On appeal, petitioners argued that the action was barred by the political question doctrine because federal courts lack the power to call into question Executive Department decisions, such as the executive agreement at issue. Id. at 229, 106 S.Ct. 2860. The Court disagreed:
Id. at 230, 106 S.Ct. 2860.
Earlier this year, the Supreme Court again reiterated the rule that federal courts have jurisdiction to interpret federal statutes, even in politically charged cases. In Zivotofsky ex rel. Zivotofsky v. Clinton, ___ U.S. ___, 132 S.Ct. 1421, 182 L.Ed.2d 423 (2012), the plaintiff, who was born in Jerusalem, challenged a decision by State Department officials to deny his request that his passport indicate his place of birth as Israel, in apparent direct violation of a federal statute. The Secretary of State argued that the case presented a non-justiciable political question. The Court disagreed:
Id. at 1427.
For the Court's purposes here, a fellow U.S. District Judge has stated the rule clearly. In Bredesen v. Rumsfeld, 500 F.Supp.2d 752
Thus, it is not surprising that numerous courts have evaluated the merits of Enabling Act claims. See Branson Sch. Dist. v. Romer, 161 F.3d 619 (10th Cir.1998) (evaluating whether an amendment to the Colorado Constitution passed by voter initiative violated the Colorado Enabling Act); (ECF No. 30, at 41-44 (listing 117 other cases in which courts have taken up the issue of whether a provision in an Enabling Act has been violated).).
Given the sufficiently clear and recent case law authority (some of it binding U.S. Supreme Court authority from the past three decades) that this Court has jurisdiction to hear the Enabling Act claim, it would be error to dismiss this case based only on the fact that Pacific States also involved an Enabling Act claim. The Court therefore concludes that it has jurisdiction to hear Plaintiffs' Enabling Act claim under 28 U.S.C. § 1331, and as a consequence Plaintiffs' Enabling Act claim is not subject to dismissal.
To summarize, the Court concludes that, at this stage of the litigation, Plaintiffs' Guarantee Clause and Enabling Act claims are justiciable and not barred by the political question doctrine.
Defendant separately moves to dismiss Plaintiffs' Equal Protection claim for failure to state a claim upon which relief can be granted. (ECF No. 18, at 19-21.)
In response, Plaintiffs argue that their Equal Protection claim should not be dismissed because their claim is analogous to the Equal Protection claims found viable in the legislative apportionment cases of Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506
The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides, "No State shall ... deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. The Equal Protection Clause "is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); see also Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) ("The Equal Protection Clause directs that all persons similarly circumstanced shall be treated alike.") (quotation marks omitted); Barney v. Pulsipher, 143 F.3d 1299, 1312 (10th Cir.1998). "In order to assert a viable Equal Protection claim, plaintiffs must first make a threshold showing that they were treated differently from others who were similarly situated to them." Barney, 143 F.3d at 1312; see also Brown v. Montoya, 662 F.3d 1152, 1172-73 (10th Cir.2011) (same); Campbell v. Buckley, 203 F.3d 738, 747 (10th Cir.2000) (same).
Plaintiffs' Equal Protection claim is properly dismissed because Plaintiffs have not plead or otherwise shown that TABOR has treated any of the Plaintiffs differently from others who are similarly situated to them. All Colorado voters had an equally weighted vote on TABOR in 1992. All Colorado voters would have an equal vote on any attempt to pass a ballot initiative invalidating TABOR. TABOR increases all Colorado voters' power equally by, inter alia, giving them the power to approve or reject any proposed new tax or tax rate increase. TABOR decreases Colorado General Assembly members' power equally by, inter alia, taking away their power to approve new taxes or tax rate increases without voter approval.
Id. at 565-68, 84 S.Ct. 1362. In the legislative apportionment cases, the allegation was that similarly situated people — voters from different districts — were being treated differently. That is not the case here. Here, TABOR affects all voters equally. TABOR does not give any voter more or less voting power than any other voter. And even if TABOR does violate Plaintiffs' constitutional rights as citizens to have a government republican in form, TABOR has the same effect on every Colorado citizen's constitutional right to a republican form of government.
The Court therefore concludes that Plaintiffs' Equal Protection claim is properly dismissed. Because Plaintiffs have not requested leave to amend this Claim, nor made any suggestion how this fundamental defect in their Equal Protection claim might be cured, the dismissal will be with prejudice. See Curley v. Perry, 246 F.3d 1278, 1282 (10th Cir.2001).
Defendant's primary argument in moving to dismiss Plaintiffs' Impermissible Amendment claim is that the claim presents a non-justiciable political question. (ECF No. 18, at 21-22; ECF No. 51, at 27-28.) For the reasons discussed above, the political question doctrine does not bar this action or any claims brought herein, including the Impermissible Amendment claim.
Defendant also argues that the Impermissible Amendment claim fails to state a claim upon which relief can be granted. (ECF No. 18, at 22.) In support of that contention, Defendant argues that the Colorado Supreme Court considers the
The Court therefore also finds that Plaintiffs' Impermissible Amendment claim is not subject to dismissal for failure to state a claim. The Court properly exercises supplemental jurisdiction over this claim pursuant to 28 U.S.C. § 1367(a). (See ECF No. 36, ¶ 53.)
Defendant does not separately move to dismiss Plaintiffs' Supremacy Clause claim. In fact, the only time the Supremacy Clause claim is even mentioned in Defendant's Motion to Dismiss (ECF No. 18) or in his Reply brief (ECF No. 51) is in a footnote pointing out that Pacific States also involved a claim brought under the Supremacy Clause. (ECF No. 18, at 13 n. 7.) Plaintiffs' Supremacy Clause claim is based on the allegation that "TABOR must yield to the requirements of the `Guarantee Clause' and of the Enabling Act that Colorado maintain a Republican Form of Government." (ECF No. 36, ¶ 84.) The Supremacy Clause claim is derivative of the Guarantee Clause claim and Enabling Act claim; if TABOR violates the Guarantee Clause and/or the Enabling Act, then it would appear that it also violates the Supremacy Clause. Because the Court has held that Plaintiffs' Guarantee Clause claim and Enabling Act claim are not subject to dismissal at this stage of the proceedings, Defendant's Motion to Dismiss Plaintiffs' Supremacy Clause claim will also be denied.
On March 28, 2012, Plaintiffs filed an Unopposed Motion for Leave to File Second Amended Substitute Complaint for Injunctive and Declaratory Relief ("Unopposed Motion"). (ECF No. 74) In the Unopposed Motion, Plaintiffs explain that they only seek to amend the Operative Complaint in order to update the current elective status of six particular plaintiffs. (Id.) This Court's review of the Operative Complaint and the proposed Second Amended Substitute Complaint for Injunctive and Declaratory Relief confirms that those were the only changes made to the Operative Complaint. (Compare ECF No. 36, with ECF No. 74-1.) The Court therefore finds good cause to grant the Unopposed Motion.
In accordance with the foregoing, the Court hereby ORDERS as follows:
(1) Defendant's Motion to Dismiss Plaintiffs' Substitute Complaint (ECF No. 18), properly construed as moving to dismiss Plaintiffs' First Amended Substitute Complaint for Injunctive and Declaratory Relief, is GRANTED IN PART and DENIED IN PART;
(3) Defendant's Motion to Dismiss is DENIED as to Plaintiffs' other four claims for relief. Those four claims will be allowed to proceed past the pleading stage in this action;
(4) Plaintiffs' Unopposed Motion for Leave to File Second Amended Substitute Complaint for Injunctive and Declaratory Relief (ECF No. 74) is GRANTED;
(5) The Clerk of Court shall FILE as a separate docket entry the Second Amended Substitute Complaint for Injunctive and Declaratory Relief, currently filed as an attachment at ECF No. 74. The Second Amended Substitute Complaint for Injunctive and Declaratory Relief will hereinafter be the operative complaint in this action; and
(6) The Court's Order staying disclosures and discovery in this action (ECF No. 29) is VACATED and said stay is hereby LIFTED.
418 U.S. at 215, 94 S.Ct. 2925 (citations omitted).
Defendant also unpersuasively likens this case to Daughtrey v. Carter, 584 F.2d 1050 (D.C.Cir.1978). There, two legislators brought suit challenging the Executive Department's alleged failure to enforce a law that the legislature had passed. The Court denied standing on the ground that "[t]he failure or refusal of the executive branch to execute accomplished legislation does not affect the legal status of such legislation; nor does it invade, usurp, or infringe upon a Congressman's power to make law. [citation omitted] Once a bill becomes law, a Congressman's interest in its enforcement is shared by, and indistinguishable from, that of any other member of the public." Id. at 1057. Here, however, the claim is that the power to legislate itself has been taken away.
Also, as previously mentioned, in Schaffer, a member of the House of Representatives alleged injuries based on a law being "personally offensive and professionally harmful to him, as well as damaging to his political position and his credibility among his constituency." 240 F.3d at 883. The Tenth Circuit denied standing, in part, on the conclusion that those asserted harms were "even more abstract" than those at issue in Raines. Id. at 885. Here, however, the alleged harm is significantly more concrete than that in Raines.
Indeed, if possible, courts should "adhere to [the] wise policy of avoiding the unnecessary adjudication of difficult questions of constitutional law." See Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 778, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005). This consideration, alone, would not warrant allowing this case to proceed past the pleading stage into the burdensome discovery process. However, independent of this consideration, the Court concludes below that it is not appropriate to dismiss this action as non-justiciable at this early stage of the proceedings. Given that the case will proceed to the summary judgment stage, the Court notes that it may be able to resolve the case on the merits at that stage, rather than having to address this difficult constitutional question.
