Kerr v. Hickenlooper

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS June 3, 2016

Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

ANDY KERR, Colorado State
Representative; NORMA V. ANDERSON;
JANE M. BARNES, member Jefferson
County Board of Education; ELAINE
GANTZ BERMAN, member State Board
of Education; ALEXANDER E.
BRACKEN; WILLIAM K. BREGAR,
member Pueblo District 70 Board of
Education; BOB BRIGGS, Westminster No. 12-1445
City Councilman; BRUCE W.
BRODERIUS, member Weld County
District 6 Board of Education; TRUDY B.
BROWN; JOHN C. BUECHNER, Ph.D.,
Lafayette City Councilman; STEPHEN A.
BURKHOLDER; RICHARD L. BYYNY,
M.D.; LOIS COURT, Colorado State
Representative; THERESA L. CRATER;
ROBIN CROSSAN, member Steamboat
Springs RE-2 Board of Education;
RICHARD E. FERDINANDSEN;
STEPHANIE GARCIA, member Pueblo
City Board of Education; KRISTI
HARGROVE; DICKEY LEE
HULLINGHORST, Colorado State
Representative; NANCY JACKSON,
Arapahoe County Commissioner;
WILLIAM G. KAUFMAN; CLAIRE
LEVY, Colorado State Representative;
MARGARET (MOLLY) MARKERT,
Aurora City Councilwoman; MEGAN J.
MASTEN; MICHAEL MERRIFIELD;
MARCELLA (MARCIE) L. MORRISON;
JOHN P. MORSE, Colorado State Senator;
PAT NOONAN; BEN PEARLMAN,
Boulder County Commissioner;
WALLACE PULLIAM; PAUL
WEISSMANN; JOSEPH W. WHITE,

Plaintiffs - Appellees,

v.

JOHN HICKENLOOPER, Governor of
Colorado, in his official capacity,

Defendant - Appellant.

------------------------------

D’ARCY W. STRAUB;
INDEPENDENCE INSTITUTE; CATO
INSTITUTE; SEN. KEVIN LUNDBERG;
REP. JERRY SONNENBERG; REP.
JUSTIN EVERETT; REP. SPENCER
SWALM; REP. JANAK JOSHI; REP.
PERRY BUCK; SEN. TED HARVEY;
SEN. KENT LAMBERT; SEN. MARK
SCHEFFEL; SEN. KEVIN GRANTHAM;
SEN VICKI MARBLE; SEN. RANDY
BAUMGARDNER; REP. DAN NORDBERG;
REP. FRANK MCNULTY; REP. JARED
WRIGHT; REP. CHRIS HOLBERT; REP.
KEVIN PRIOLA; SEN. SCOTT RENFROE;
SEN. BILL CADMAN; COLORADO UNION
OF TAXPAYERS FOUNDATION;
NATIONAL FEDERATION OF
INDEPENDENT BUSINESS; TABOR
FOUNDATION; AMERICAN
LEGISLATIVE EXCHANGE COUNCIL;
NATIONAL TAXPAYERS UNION;
AMERICANS FOR TAX REFORM;
CITIZENS IN CHARGE; HOWARD
JARVIS TAXPAYERS ASSOCIATION;
CITIZENS FOR LIMITED TAXATION;
GOLDWATER INSTITUTE; FREEDOM
CENTER OF MISSOURI; CASCADE
POLICY INSTITUTE; PELICAN
INSTITUTE FOR PUBLIC POLICY;
TAX FOUNDATION OF HAWAII;

2
WISCONSIN INSTITUTE FOR LAW &
LIBERTY; WASHINGTON POLICY
CENTER; OKLAHOMA COUNCIL FOR
PUBLIC AFFAIRS; HOWARD JARVIS
TAXPAYERS FOUNDATION; FREEDOM
CENTER OF MISSOURI; FREEDOM
FOUNDATION; GOLDWATER
INSTITUTE; 1851 CENTER FOR
CONSTITUTIONAL LAW; COLORADO
CHAPTER OF THE AMERICAN
ACADEMY OF PEDIATRICS; COLORADO
NONPROFIT ASSOCIATION; COLORADO
GENERAL ASSEMBLY; BELL POLICY
CENTER; COLORADO FISCAL
INSTITUTE; THE CENTER ON BUDGET
AND POLICY PRIORITIES; COLORADO
PARENT TEACHER ASSOCIATION;
ERWIN CHEMERINSKY; HANS LINDE;
WILLIAM MARSHALL; GENE NICHOL;
WILLIAM WIECEK; COLORADO
ASSOCIATION OF SCHOOL BOARDS;
COLORADO ASSOCIATION OF SCHOOL
EXECUTIVES; CENTER ON BUDGET
AND POLICY PRIORITIES; DAVID
BALMER; JOHN COOKE; LARRY
CROWDER; OWEN HILL; BETH
MARTINEZ HUMENIK; TIM NEVILLE;
ELLEN ROBERTS; RAY SCOTT; LAURA
WOODS; JON BECKER; J. PAUL BROWN;
KATHLEEN CONTI; DON CORAM; BRIAN
DELGROSSO; TIM DORE; STEPHEN
HUMPHREY; GORDON
KLINGENSCHMITT; LOIS LANDFRAF;
POLLY LAWRENCE; PAUL LUNDEEN;
PATRICK NEVILLE; BOB RANKIN; KIM
RANSOM; CATHERINE ROUPE; LORI
SAINE; LANG SIAS; DAN THURLOW;
YEULIN V. WILLETT; JAMES WILSON;
JOANN WINDHOLZ; BOB GARDNER;
MIKE KOPP; ANDY MCELHANY; STATE
OF TEXAS; STATE OF IDAHO; STATE OF
INDIANA; STATE OF MICHIGAN;
CENTER FOR CONSTITUTIONAL
JURISPRUDENCE,

Amici Curiae.

3
 _________________________________

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:11-CV-01350-RM-NYW)
_________________________________

Frederick R. Yarger (William Allen, Kathleen Spalding, Stephanie Lindquist Scoville,
Matthew D. Grove, Megan Paris Rundlet, and Jonathan P. Fero, Office of the Attorney
General for the State of Colorado, and Daniel D. Domenico, Kittredge LLC, with him on
the briefs), Office of the Attorney General for the State of Colorado, Denver, Colorado,
for Defendant-Appellant.

David E. Skaggs (Lino S. Lipinsky de Orlov, Dentons US LLP, Denver, Colorado, John
A. Herrick, Geoffrey Williamson, Carrie E. Johnson, Sarah M. Clark, Michael F. Feeley,
Brownstein Hyatt Farber Schreck, LLP, Denver, Colorado, Michael L. Bender, Perkins
Coie, LLP, Denver, Colorado; Herbert Lawrence Fenster, Covington & Burling LLP,
Washington, D.C., with him on the briefs), for the Plaintiffs-Appellees.

Richard A. Westfall, Hale Westfall, LLP, Denver, Colorado, and Karen R. Harned and
Luke A. Wake, NFIB Small Business Legal Center, Washington, D.C., filed an amicus
curiae brief for National Federation of Independant Business; Tabor Foundation;
American Legislative Exchange Council; National Taxpayers Union; Americans for Tax
Reform; Citizens in Charge; Howard Jarvis Taxpayers Association; Citizens for Limited
Taxation; Goldwater Institute; Freedom Center of Missouri; Cascade Policy Institute;
Pelican Institute; Institute for Public Policy; Tax Foundation of Hawaii; Wisconsin
Institute for Law and Liberty; Washington Policy Center on behalf of Defendant-
Appellant.

Matthew J. Douglas, Holly E. Sterrett, Paul W. Rodney, and Nathaniel J. Hake, Arnold &
Porter, LLP, Denver, Colorado, filed an amicus curiae brief for the Bell Policy Center
and the Colorado Fiscal Institute on behalf of Plaintiffs-Appellees.

Ilya Shapiro, Cato Institute, Washington, D.C., filed an amicus curiae brief for Cato
Institute on behalf of Defendant-Appellant.

Anthony J. Bruno, Milton A. Miller, and Jacquelynn K.M. Levien, Latham & Watkins,
LLP, Los Angeles, California, and John C. Eastman, Center for Constitutional
Jurisprudence, Orange, California, filed an amicus curiae brief for the Center for
Constitutional Jurisprudence on behalf of Defendant-Appellant.

4
Andrew M. Low, Emily L. Droll, and John M. Bowlin, Davis Graham & Stubbs, LLP,
Denver, Colorado, filed an amicus curiae brief for Colorado Association of School
Executives and Colorado Association of School Boards on behalf of Plaintiffs-Appellees.

Harold A. Haddon and Laura G. Kastetter, Haddon Morgan and Foreman, P.C., Denver,
Colorado, filed an amicus curiae brief for Colorado Chapter of the American Academy of
Pediatrics and the Colorado Nonprofit Association on behalf of Plaintiffs-Appellees.

Stephen G. Masciocchi and Maureen Reidy Witt, Holland & Hart, LLP, Denver,
Colorado, and Greenwood Village, Colorado, filed an amicus curiae brief for the
Colorado General Assembly on behalf of Plaintiffs-Appellees.

Catherine C. Engberg, Shute Mihaly & Weinberger, LLP, San Francisco, California, filed
an amicus curiae brief for the Colorado Parent Teacher Association on behalf of
Plaintiffs-Appellees.

Jeffrey W. McCoy and Steven J. Lechner, Mountain States Legal Foundation, Lakewood,
Colorado, filed an amicus curiae brief for Colorado Union of Taxpayers Foundation,
Andy McElhany, Bill Cadman, Bob Gardner, Bob Rankin, Brian DelGrosso, Catherine
Roupe, Chris Holbert, Dan Nordberg, Dan Thurlow, David Balmer, Don Coram, Ellen
Roberts, Frank McNulty, Gordon Klingenschmitt, J. Paul Brown, James Wilson, Janak
Joshi, Jerry Sonnenberg, John Cooke, Jon Becker, Justin Everett, Kathleen Conti, Kent
Lambert, Kevin Grantham, Kevin Lundberg, Kevin Priola, Kim Ransom, Laura Woods,
Lang Sias, Larry Crowder, Lois Landfraf, Lori Saine, Mark Scheffel, Mike Kopp, Owen
Hill, Patrick Neville, Paul Lundeen, Perry Buck, Polly Lawrence, Randy Baumgardner,
Ray Scott, Scott Renfroe, Spencer Swalm, Stephen Humphrey, Ted Harvey Tim Dore,
Tim Neville, Vicki Marble, Yeulin V. Willett, Beth Martinez Humenik, and JoAnn
Windholz, on behalf of Defendant-Appellant.

David Kopel, Independence Institute, Denver, Colorado, filed an amicus curiae brief for
Independence Institute on behalf of Defendant-Appellant.

Ken Paxton, Attorney General of Texas, Charles E. Roy, First Assistant Attorney
General, Scott A. Keller, Solicitor General, J. Campbell Barker, Deputy Solicitor
General, Autumn Hamit Patterson, Assistant Attorney General, Office of the Attorney
General for the State of Texas, Austin, Texas, and Lawrence G. Wasden, Attorney
General of Idaho, Boise, Idaho, Gregory F. Zoeller, Attorney General of Indiana,
Indianapolis, Indiana, and Bill Schuette, Attorney General of Michigan, Lansing,
Michigan, filed an amicus curiae brief for the State of Idaho, State of Indiana, State of
Michigan, and State of Texas on behalf of Defendant-Appellant.

5
Joseph R. Guerra and Kathleen Mueller, Sidley Austin, LLP, Washington, D.C., filed an
amicus curiae brief for The Center on Budget and Policy Priorities on behalf of Plaintiffs-
Appellees.

D’Arcy W. Straub, Littleton, Colorado, filed an amicus curiae brief for D’Arcy W. Straub
on behalf of Defendant-Appellant.

Melissa Hart, University of Colorado School of Law, Boulder, Colorado, filed an amicus
curiae brief for Erwin Chemerinsky, Gene Nichol, Hans Linde, William Marshall, and
William Wiecek on behalf of Plaintiffs-Appellees.
_________________________________

Before BRISCOE, SEYMOUR, and LUCERO, Circuit Judges.
_________________________________

LUCERO, Circuit Judge.
_________________________________

We are asked to take a second look at this case to consider the effect of the

Supreme Court’s intervening opinion in Arizona State Legislature v. Arizona

Independent Redistricting Commission, 135 S. Ct. 2652 (2015) (hereinafter

“Arizona”). See Hickenlooper v. Kerr, 135 S. Ct. 2927 (2015). In Arizona, the

Supreme Court held that the Arizona Legislature as an institution had standing to

challenge a voter-approved proposition. 135 S. Ct. at 2659. For standing purposes,

the Arizona Court distinguished individual legislators, cf. Raines v. Byrd, 521 U.S.

811 (1997), from a legislature as a whole for claims challenging a legislature’s

power. We conclude that this rule of law materially alters the jurisprudence on

legislator standing and compels us to reverse course from our previous opinion in

Kerr v. Hickenlooper, 744 F.3d 1156 (10th Cir. 2014), vacated sub nom. 135 S. Ct.

2927 (2015), (hereinafter “Kerr I”), in which we affirmed the district court’s ruling

that individual legislators had standing. We now conclude that these individual

6
legislators lack standing because they assert only an institutional injury. We vacate

the district court’s order and remand for further proceedings.

I

Plaintiffs are current and former government officials in Colorado, parents of

school-aged children, and educators. They filed suit in the district court advancing

several challenges to Article X, § 20 of the Colorado Constitution, commonly referred to

as the Taxpayer’s Bill of Rights (“TABOR”). TABOR limits the revenue-raising power

of state and local governments by requiring “voter approval in advance for . . . any new

tax, tax rate increase, mill levy above that for the prior year, valuation for assessment

ratio increase for a property class, or extension of an expiring tax, or a tax policy change

directly causing a new tax revenue gain.” Colo. Const. art. X, § 20, cl. 4(a). The

defendant, Governor John Hickenlooper, moved to dismiss the complaint. He argued that

the plaintiffs lacked standing, that their claims presented nonjusticiable political

questions, and that they failed to state a claim under the Equal Protection Clause.

The district court granted in part and denied in part the Governor’s motion to

dismiss. It dismissed plaintiffs’ equal protection claim, but concluded that certain

plaintiffs, who were current state legislators (the “legislator-plaintiffs”), had standing and

that their claims were not barred by the political question doctrine. The court declined to

consider whether any other plaintiffs possessed standing. Upon motion by Governor

Hickenlooper, the district court certified its order for interlocutory appeal under 28

U.S.C. § 1292(b). We accepted jurisdiction and affirmed. Kerr I, 744 F.3d at 1183.

7
 In Kerr I, we wrestled with the two essential Supreme Court cases on legislator

standing, Coleman v. Miller, 307 U.S. 433 (1939), and Raines. In Coleman, the Court

considered a challenge to Kansas’ ratification of a proposed constitutional amendment

after the lieutenant governor cast a tie-breaking vote in the state senate. 307 U.S. at 435.

The Court held that twenty-one state senators, including the twenty who voted against

ratification, possessed standing to sue because their “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.” Id. at 438. It concluded

that “these senators have a plain, direct and adequate interest in maintaining the

effectiveness of their votes.” Id.

In Raines, the Court considered whether the Line Item Veto Act (“LIVA”) caused

cognizable injury by granting the President the authority to cancel certain spending and

tax measures after signing them into law. 521 U.S. at 814. The Court held that six

members of Congress who voted against LIVA lacked standing to challenge the law. Id.

at 813-14. It distinguished Coleman on the ground that the legislators in that case had

their votes “completely nullified.” Id. at 823. In contrast, the Raines challengers merely

alleged an “abstract dilution of institutional legislative power.” Id. at 826.

We acknowledged in Kerr I that neither Raines nor Coleman “maps perfectly onto

the alleged injury in this case,” but concluded plaintiffs’ “allegations fall closer to the

theory of vote nullification espoused in Coleman than to the abstract dilution theory

rejected in Raines.” Kerr I, 744 F.3d at 1165. The legislator-plaintiffs allege that

TABOR deprives them of their ability to perform the “legislative core functions of

8
taxation and appropriation” and “remov[es] the taxing power of the General Assembly.”

We determined that “[u]nder TABOR, a vote for a tax increase is completely ineffective

because the end result of a successful legislative vote in favor of a tax increase is not a

change in the law” and thus a legislator’s vote is “advisory from the moment it is cast.”

Id. at 1165, 1166.

In making that determination, we considered several factors that distinguished this

suit from Raines. In particular, we noted that legislator-plaintiffs lack a legislative

remedy because “TABOR was not passed by, and cannot be repealed by, the Colorado

General Assembly.” Id. at 1166. But see Raines, 521 U.S. at 824 (noting that Congress

could repeal LIVA by simple majority vote). Separation of powers concerns are not

implicated because this case does not challenge an action taken by a coequal branch of

the federal government. Kerr I, 744 F.3d at 1168. But see Raines, 521 U.S. at 819-20

(“[O]ur 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.”). And although the General

Assembly was not a party, it submitted an amicus brief in support of standing. Kerr I,

744 F.3d at 1168. But see Raines, 521 U.S. at 829 (noting that both houses of Congress

actively opposed the suit).

We further noted several features of the alleged injury that counseled against

standing. As in Raines, the legislator-plaintiffs did not “claim that they were ‘personally

entitled’ to cast an effective vote on revenue-raising measures in the sense that the

authority at issue runs . . . with the Member’s seat.” Kerr I, 744 F.3d at 1170 (quoting

9
Raines, 521 U.S. at 821). But we determined that “this factor alone cannot be sufficient

to defeat standing.” Id. We also acknowledged but rejected the Governor’s argument

that legislator-plaintiffs must identify a “specific legislative act,” id. at 1168 (quotation

omitted), in order to establish standing because “[o]ur standing jurisprudence does not

demand that plaintiffs engage in an obviously futile gesture,” id. at 1170. And although

we recognized that some cases have concluded individual legislators lack standing if their

claimed injury impacted all members of a legislature equally, we noted that those cases

rested in part on “the availability of internal legislative remedies, or separation-of-powers

concerns, none of which are present in this case.” Id. at 1171. Ultimately, we held that

“the legislator-plaintiffs have sufficiently alleged an injury to the ‘plain, direct and

adequate interest in maintaining the effectiveness of their votes.’” Id. at1171 (quoting

Coleman, 407 U.S. at 438).

II

After we decided Kerr I, the Supreme Court handed down Arizona, which

parallels the present action in many respects. In that suit, the Arizona Legislature

argued that Proposition 106, which created an independent commission with sole

authority over redistricting, violated the Elections Clause, U.S. Const. art. 1, § 4, cl.

1. Arizona, 135 S. Ct. at 2658-59. The Court held that the Legislature had standing,

id. at 2665, but concluded that the regime did not violate the Elections Clause, id. at

2677.

The Arizona Court considered many of the same standing issues we confronted

in Kerr I. It first held that the Legislature did not need to point to a “specific

10
legislative act that would have taken effect but for” the challenged constitutional

provision. Arizona, 135 S. Ct. at 2663 (quotation omitted). It concluded that the suit

was not “premature,” nor was the Legislature’s injury hypothetical, because any

legislative act would “directly and immediately conflict with the regime Arizona’s

Constitution establishes.” Id. Under the Arizona Constitution, the Legislature does

not have the power “‘to adopt any measure that supersedes [an initiative], in whole or

in part, . . . unless the superseding measure furthers the purposes’ of the initiative.”

Id. at 2664 (quoting Ariz. Const. art. IV, pt. 1, § 1(14)). If the Legislature had

adopted a redistricting plan, it would have violated the Arizona Constitution because

any such adoption would constitute an attempt to supersede Proposition 106. Id.

Further, once the independent commission certifies its redistricting plan to the

Secretary of State, the Arizona Constitution requires the Secretary to implement that

plan and no other. Id. (citing Ariz. Const. art. IV, pt. 2, § 1(17)). The Court held that

“the Legislature need not violate the Arizona Constitution and show that the

Secretary of State would similarly disregard the State’s fundamental instrument of

government” to establish standing. Id.

The Court then considered Raines and Coleman. It concluded the

Legislature’s asserted injury was similar to that alleged in Coleman. Id. at 2665. As

in Coleman, the Court reasoned, the Legislature had standing because Proposition

106, in tandem with the Arizona Constitution’s prohibition on undermining the

purposes of an initiative, would “‘completely nullif[y]’ any vote by the Legislature,

11
now or ‘in the future,’ purporting to adopt a redistricting plan.” Id. (quoting Raines,

521 U.S. at 823-24).

In distinguishing Raines, the Court first noted that the case before it did “not

touch or concern the question whether Congress has standing to bring a suit against

the President,” which “would raise separation-of-powers concerns” and warrant an

“‘especially rigorous’” standing inquiry. Id. at 2665 n.12 (quoting Raines, 521 U.S.

at 819). The Court then described that its primary basis for refusing to extend Raines

was the plaintiffs’ identity. The plaintiffs in Raines, who did not have standing, were

“six individual Members of Congress” who failed to show an alleged injury that

“zeroed in on any individual Member.” Id. at 2664. Instead, the alleged injury was

“‘widely dispersed’” and “‘necessarily impacted all Members of Congress and both

Houses . . . equally.’” Id. (quoting Raines, 521 U.S. at 821, 829) (alterations

omitted). In contrast, the Legislature in Arizona had standing because it was “an

institutional plaintiff asserting an institutional injury, and it commenced th[e] action

after authorizing votes in both of its chambers.” Id. Finally, the Court noted that

Raines had “‘attached some importance to the fact that the Raines plaintiffs had not

been authorized to represent their respective Houses of Congress.’” Id. (quoting

Raines, 521 U.S. at 829) (alterations omitted). In contrast, the Arizona Legislature as

an institution brought the suit challenging Proposition 106 after “authorizing votes in

both of its chambers.” Id.

III

12
 Adhering to the holding in Arizona, we conclude that a threshold question in

the legislator standing inquiry is whether the legislator-plaintiffs assert an

institutional injury. This issue was discussed briefly in Raines. See 521 U.S. at 821

(describing “the diminution of legislative power” as “a type of institutional injury”).

But as we noted in Kerr I, both Raines and Coleman were brought by groups of

individual legislators. See Kerr I, 744 F.3d at 1170. Not so in Arizona. There, the

Court was presented with “an institutional plaintiff asserting an institutional injury.”

Arizona, 135 S. Ct. at 2664. Viewing these cases together, individual legislators may

not support standing by alleging only an institutional injury.

As defined in Arizona, institutional injuries are those that do not “zero[] in on

any individual Member.” Id. Instead, an institutional injury is “[w]idely dispersed”

and “necessarily impact[s] all [m]embers of [a legislature] equally.” Id. (quotation

and alterations omitted). Thus, under Arizona, an institutional injury constitutes

some injury to the power of the legislature as a whole rather than harm to an

individual legislator. An individual legislator cannot “tenably claim a personal

stake” in a suit based on such an institutional injury. Id. (quotation omitted).

This formulation differs in some respects from that expressed in Raines, which

is internally inconsistent. The Raines Court described the injury alleged as 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. It

also stated—consistent with Arizona—that the plaintiffs had “alleged no injury to

themselves as individuals” and “the institutional injury they allege is wholly abstract

13
and widely dispersed.” 521 U.S. at 829. But the Raines Court also stated that

Coleman was “[t]he one case in which we have upheld standing for legislators . . .

claiming an institutional injury.” Id. at 821.

Describing the injury in Coleman as “institutional” is difficult to square with

the definition of an institutional injury provided in Arizona. As discussed supra, the

Coleman Court held that a group of legislators, whose votes would have been

sufficient to defeat a proposed amendment if their position were correct, had “a plain,

direct and adequate interest in maintaining the effectiveness of their votes.” 307 U.S.

at 438. Such a claim does not rest on an injury that “necessarily impacted all

[m]embers of [a legislature] equally.” Arizona, 135 S. Ct. at 2664 (quotation and

alterations omitted). To the contrary, Coleman considered which bloc of legislators

had prevailed in a vote. Only the state senators whose votes were allegedly nullified

suffered an injury; the twenty senators who voted in favor of the amendment at issue

were not aggrieved at all. Thus, Coleman did not concern injury to the power of the

legislature as a whole.

Moreover, prior to characterizing Coleman as involving an institutional injury,

the Raines Court declared that the plaintiffs’ “claim of standing is based on a loss of

political power, not loss of any private right” and compared lower court decisions

reaching different conclusions as to whether individual legislators have standing

when they “assert injury to their institutional power as legislators.” 521 U.S. at 820

n.4. The Court also stressed that Powell v. McCormack, 395 U.S. 486 (1969), which

decided a case brought by an individual legislator who was denied a seat in the House

14
of Representatives, was inapposite. Raines, 521 U.S. at 820-21. Thus, it may be that

the Raines Court used the term “institutional” in describing Coleman to distinguish

injuries that a legislator suffers in an official capacity from those suffered in a

personal capacity.

Whatever the meaning of this passage from Raines, however, we determine it

clear that the Arizona Court used the term “institutional injury” to refer to a harm

inflicted on a legislature itself, such that it necessarily impacts all members of that

legislature in equal measure. Arizona, 135 S. Ct. at 2664. And although we

acknowledge that Arizona did not expressly hold that only an institutional plaintiff

possesses standing to assert an institutional injury, that much is implicit in the

Court’s opinion.1 If we misrepresent the present state of the pertinent jurisprudence,

the Court itself can clarify the matter on further review.

We accordingly consider whether the legislator-plaintiffs have alleged an

institutional injury. They claim that TABOR deprives them of their ability to

perform the “legislative core functions of taxation and appropriation.” Kerr I, 744

F.3d at 1163. This injury shares several features with the one alleged in Arizona.

The injury goes “well beyond mere abstract dilution.” Kerr I, 744 F.3d at 1165

(quotation omitted), cf. Arizona, 135 S. Ct. at 2665. Additionally, TABOR, like

Proposition 106, cannot be repealed “pursuant to the normal legislative process.”

Kerr I, 744 F.3d at 1166 (quotation omitted); cf. Arizona, 135 S. Ct. at 2664. And

1
We do not need to decide in this case whether a group of legislators large
enough to prevail on a vote, see Coleman, 307 U.S. at 438, would possess standing
based upon an institutional injury.
15
neither case presents separation of powers concerns. Kerr I, 744 F.3d at 1168; cf.

Arizona, 135 S. Ct. at 2665 n.12. And most importantly, as in Arizona, the injury

alleged by the legislator-plaintiffs is an institutional injury: it is based on the loss of

legislative power that necessarily impacts all members of the General Assembly

equally.

In determining whether a party may rely on an institutional injury to

demonstrate standing, the Court has considered whether the plaintiffs represent their

legislative body as an institution. See Arizona, 135 S. Ct. at 2664; Raines, 521 U.S.

at 829. In Arizona, the Legislature “commenced th[e] action after authorizing votes

in both of its chambers.” 135 S. Ct. at 2664. In contrast, the Raines plaintiffs had

“not been authorized to represent their respective Houses of Congress.” 521 U.S. at

829. Similarly, when this suit was filed, only five of one hundred General Assembly

members were parties. The Governor states that only three plaintiffs remain current

members. And the plaintiffs have acknowledged that including their official

positions in the complaint did not imply authority to represent the General Assembly.

Thus, the legislator-plaintiffs pursue this action in their individual capacities, rather

than as representatives for the General Assembly as a whole.

An amicus brief from the General Assembly in support of legislator standing

does not alter our analysis. An amicus is not a party. See Coal. of Ariz./N.M. Ctys.

for Stable Econ. Growth v. Dep’t of Interior, 100 F.3d 837, 844 (10th Cir. 1996).

And the amicus brief does not indicate institutional endorsement of the merits of the

legislator-plaintiffs’ claims. The Senate Resolution approving the filing stated that

16
“[t]he involvement of the General Assembly as amicus curiae on the limited issue of

standing . . . should carry no implication about the views of the General Assembly on

the merits of such lawsuits.” S. Joint Res. 16, 69th General Assembly, 1st Regular

Sess., at 2 (Colo. 2013).

Moreover, the vote authorizing the amicus brief occurred two years after this

suit was filed, and thus would not demonstrate that the “party invoking federal

jurisdiction had the requisite stake in the outcome when the suit was filed.” Davis v.

Fed. Election Comm’n, 554 U.S. 724, 734 (2008). We further note that 44 current

General Assembly members, including a majority of the Colorado State Senate, filed

an amicus brief supporting the Governor after the Supreme Court vacated our prior

opinion. But we do not need to consider the relative weight of these filings in our

standing analysis. We observe only that an amicus brief in support of standing does

not constitute authorization to bring the suit on behalf of the institution. And because

the legislator-plaintiffs are not authorized to represent the General Assembly or either

chamber, they do not qualify as institutional plaintiffs.

The Arizona Legislature was permitted to challenge a state constitutional

provision stripping that body of certain power because it was “an institutional

plaintiff.” Arizona, 135 S. Ct. at 2664. But the legislator-plaintiffs are a group of

individual members of the General Assembly with numbers too small to authorize

this lawsuit or to enact a specific legislative act. The alleged injury “scarcely

zeroe[s] in on any individual [m]ember.” Id. “None of the plaintiffs, therefore, c[an]

tenably claim a personal stake in the suit.” Id. (quotation omitted).

17
 In so holding, we do not suggest that an individual legislator can never bring

suit. An individual legislator certainly retains the ability to bring a suit to redress a

personal injury, as opposed to an institutional injury. For example, if a particular

subset of legislators was barred from exercising their right to vote on bills, such an

injury would likely be sufficient to establish a personal injury. See Raines, 521 U.S.

at 824 n.7 (discussing similar hypotheticals). Under those circumstances, the

legislator could claim a personal injury that zeroes in on the individual and is thus

concrete and particularized. See Powell, 395 U.S. at 550 (action brought by

individual claiming personal right to seat in the House of Representatives was

justiciable). But the legislator-plaintiffs allege a different sort of injury altogether.

They claim that they have been individually disempowered only concomitantly as a

result of TABOR’s diminution of the General Assembly’s authority as an institution.

In determining that the legislator-plaintiffs had standing, Kerr I rested on a

number of factors identified in Coleman and Raines, including the availability of a

legislative remedy, Kerr I, 744 F.3d at 1166; the existence of separation of powers

concerns, id. at 1168; and the extent to which TABOR disempowered the legislator-

plaintiffs, id. at 1165-66. But Arizona materially altered the law on legislator

standing such that the nature of the injury—whether it is personal or institutional—is

a primary consideration in determining whether individual legislators may bring suit.

Under Arizona, the legislator-plaintiffs assert only an institutional injury, and thus

lack standing to bring this action.

IV

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 We previously emphasized the limited nature of this interlocutory appeal:

“The district court determined that the plaintiffs who are current state legislators . . .

have standing and thus declined to assess the standing of any other named

plaintiffs . . . . We similarly limit our review to the standing of the legislator-

plaintiffs.” Kerr I, 744 F.3d at 1163. Governor Hickenlooper asks us to extend our

review to determine whether any non-legislator plaintiffs have standing. We again

decline to do so.

The Governor argues that we are obligated to reach all jurisdictional questions

in this interlocutory appeal. But our court frequently remands jurisdictional issues

for determination by the district court. See, e.g., Dutcher v. Matheson, 733 F.3d 980,

990 (10th Cir. 2013) (remanding “with instructions for the district court to determine

whether it has jurisdiction”); Motive Parts Warehouse v. Facet Enters., 774 F.2d 380,

389 (10th Cir. 1985) (“[W]e deem it more appropriate to have the trial court

specifically address the standing issue on remand.”). Appellate courts have

“discretion to remand issues, even jurisdictional ones, to the trial court when that

court has not had the opportunity to consider the issue in the first instance.” Salmon

Spawning & Recovery All. v. U.S. Customs & Border Prot., 550 F.3d 1121, 1134

(Fed. Cir. 2008) (collecting cases).

Declining to reach the issue of standing as to the remaining plaintiffs is

particularly appropriate in the context of this interlocutory appeal. Although “[o]ur

jurisdiction under 28 U.S.C. § 1292(b) is not confined to the question certified for

appeal,” we “are limited to consideration of the order from which [the] appeal is

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taken.” Jobin v. Boryla (In re M&L Business Mach Co.), 75 F.3d 586, 589 n.4 (10th

Cir. 1996). Because the district court did not reach the Governor’s arguments as to

the non-legislator plaintiffs in its certified order, we lack information about the other

plaintiffs. We remand for the district court to make the initial determination

regarding non-legislator plaintiffs’ standing.

For similar reasons, we decline to address the political question doctrine. See

Kerr I, 744 F.3d at 1181. Because the district court erred in holding the legislator-

plaintiffs possess standing, we vacate its certified order. On remand, if the district

court concludes the remaining plaintiffs lack standing, there will be no reason to

consider the political question doctrine. See Tenet v. Doe, 544 U.S. 1, 6 n.4 (2005)

(federal courts possess discretion “to choose among threshold grounds for denying

audience to a case on the merits” (quotation omitted)). If, however, the district court

holds that some other plaintiffs possess standing, the district court may then consider

other justiciability hurdles. In the interest of judicial economy, we conclude that a

remand for consideration of non-legislator standing is the best course.

V

Because the legislator-plaintiffs rely on an institutional injury, we hold that

they lack standing. We VACATE the district court’s certified order and REMAND

for a determination of whether the non-legislator plaintiffs possess standing.

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