Kerr v. Hickenlooper

FILED
United States Court of Appeals
Tenth Circuit
PUBLISH
July 22, 2019
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
_________________________________

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. 17-1192
City Councilman; BRUCE W.
BRODERINS, 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; CLAIRE
LEVY, Colorado State Representative;
MARGARET MARKERT, Aurora City
Councilwoman, a/k/a Molly Markert;
MEGAN J. MASTEN; MICHAEL
MERRIFIELD; MARCELLA L.
MORRISON, a/k/a Marcy L. Morrison;
JOHN P. MORSE, Colorado State Senator;
PAT NOONAN; BEN PEARLMAN,
Boulder County Commissioner;
 WALLACE PULLIAM; FRANK
WEDDIG, Arapahoe County
Commissioner; PAUL WEISSMANN;
JOSEPH W. WHITE; CHEYENNE
WELLS RE-5 SCHOOL DISTRICT
BOARD OF EDUCATION; SUSAN
LONTINE; DENVER COUNTY PUBLIC
SCHOOLS BOARD OF EDUCATION;
K.C. BECKER; BOARD OF COUNTY
COMMISSIONERS OF BOULDER
COUNTY; BOULDER VALLEY
SCHOOL DISTRICT RE-2 BOARD OF
EDUCATION; GUNNISON COUNTY
METROPOLITAN RECREATION
DISTRICT; LESLIE HEROD; PUEBLO
CITY DISTRICT 60 BOARD OF
EDUCATION; CHRISTOPHER J.
HANSEN; GUNNISON WATERSHED
RE-IJ SCHOOL DISTRICT BOARD OF
EDUCATION; COLORADO SPRINGS
DISTRICT 11 BOARD OF EDUCATION;
POUDRE SCHOOL DISTRICT BOARD
OF EDUCATION; PUEBLO COUNTY
SCHOOL DISTRICT 70 BOARD OF
EDUCATION; WILLIAM G.
KAUFMAN,

Plaintiffs - Appellants,

v.

JARED POLIS, Governor of Colorado in
his official capacity,*

Defendant - Appellee.

*
When the action began, the Governor of Colorado was John Hickenlooper.
While this action was pending, on January 8, 2019, Jared Polis became the governor
of Colorado. Because the Governor is sued in his official capacity, we substitute
Governor Polis for Governor Hickenlooper per Fed. R. App. P. 43(c)(2).

2
 ------------------------------

COLORADO ASSOCIATION OF
SCHOOL BOARDS AND COLORADO
ASSOCIATION OF SCHOOL
EXECUTIVES; THE COLORADO
UNION OF TAXPAYERS
FOUNDATION; MOUNTAIN STATES
LEGAL FOUNDATION,

Amici Curiae.
_________________________________

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

David E. Skaggs, Dentons US LLP, Denver, Colorado (Lino S. Lipinsky de Orlov,
Dnetons US LLP, Denver, Colorado, Herbert Lawrence Fenster and Shannon Tucker,
Covington & Burling LLP, Washington, D.C., Michael F. Feeley, Sarah M. Clark, Carrie
E. Johnson, and Cole J. Woodward, Brownstein Hyatt Farber Schreck LLP, Denver,
Colorado, and John A. Herrick, Denver Colorado, with him on the briefs), for Plaintiffs-
Appellants.

Frederick R. Yarger, Solicitor General (Cynthia H. Coffman, Attorney General, Glenn E.
Roper, Deputy Solicitor General, Megan Paris Rundlet, Assistant Solicitor General,
Kathleen Spalding, Senior Assistant Attorney General, Stephanie Lindquist Scoville,
Senior Assistant Attorney General, and Matthew D. Grove, Assistant Solicitor General,
with him on the brief), Office of the Attorney General for the State of Colorado, Denver,
Colorado, for Defendant-Appellee.

Shannon Wells Stevenson and Kyle W. Brenton, Davis Graham & Stubbs LLP, Denver,
Colorado, filed an Amici Curiae brief in support of Plaintiffs-Appellants.

Steven J. Lechner and Cody J. Wisniewski, Mountain States Legal Foundation,
Lakewood, Colorado, filed an amici brief in support of Defendant-Appellee.
_________________________________

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

3
SEYMOUR, Circuit Judge.
_________________________________

This case has a long history. The issue currently before us is whether certain

school districts, a special district board, and/or a county commission have standing to

challenge Colorado’s Taxpayer Bill of Rights (“TABOR”). Colo. Const. art. X, § 20.

TABOR allows the people of Colorado to raise or prevent tax increases by popular

vote, thereby limiting the power of Colorado’s legislative bodies to levy taxes. On a

motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P.

12(b)(1), the district court held that plaintiffs had Article III standing but that they

lacked political subdivision standing and prudential standing. Accordingly, the court

dismissed the complaint. Plaintiffs appeal.

This case is rife with difficult issues, and we applaud the district court for its

attempts to “don waders” and generate some cognizable structure out of the sludge.

Nevertheless, we conclude that it could not properly reach its conclusions at this

stage of litigation. Because we hold that the political subdivision plaintiffs are not

barred by standing requirements, we reverse.

I.

Plaintiffs contend that TABOR denies them a “republican form of government” as

guaranteed by Congress in the Colorado Enabling Act, ch. 139, 18 Stat. 474 (1875)

(“Enabling Act”), because it takes power from the legislature and puts it into the hands of

the people of Colorado in violation of the Guarantee Clause, see U.S. Const. art. IV, § 4,

4
and the Enabling Act as enforced by the Supremacy Clause, see U.S. Const. art. VI, § 2.

In one of our prior opinions, we held that certain individual legislator plaintiffs had

standing to make this claim and that the claim was not a nonjusticiable political question.

See Kerr v. Hickenlooper, 744 F.3d 1156, 1161 (10th Cir. 2014) (“Kerr I”). On appeal,

the Supreme Court vacated and remanded the matter to us for further consideration in

light of its opinion in Arizona State Legislature v. Arizona Indep. Redistricting Com’n,

135 S. Ct. 2652 (2015). See Hickenlooper v. Kerr, 135 S. Ct. 2927 (2015).

On remand, we held that the individual legislator plaintiffs lacked standing

because they were asserting an institutional injury. Kerr v. Hickenlooper, 824 F.3d 1207,

1211 (10th Cir. 2016) (“Kerr II”). We instructed the district court to determine whether

any other plaintiffs had standing. Back at the district court, plaintiffs amended their

complaint to add certain additional entities: eight school boards, the Board of County

Commissioners of Boulder County, and a special district board. As noted, the district

court thereafter dismissed the complaint.

TABOR prevents the state legislature and local entities from enacting new taxes or

raising taxes except by popular vote. Particularly significant to plaintiffs in this case,

TABOR prohibits state and local governments from appropriating revenue in excess of

the prior year’s spending, and it requires the state and local governments to refund

taxpayers for revenues appropriated in excess of the prior year’s spending. Colo. Const.

art. X, § 20(7)(a) & (d). TABOR also causes plaintiffs to incur costs from presenting

matters to voters. Plaintiffs allege that these requirements inhibit them from performing

5
their mandated responsibilities under Colorado law. See, e.g., Colo. Const. art. XIV.1

As a condition of admitting Colorado to the Union, Congress required that the

state’s constitution “shall be republican in form.” 18 Stat. 474. This language mimics

the language from the Guarantee Clause of the United States Constitution. See U.S.

Const. art. IV, § 4. Under the Supremacy Clause, federal law controls when federal and

state law are in conflict with one another. U.S. Const. art. VI, § 2. Plaintiffs contend that

TABOR denies them the republican form of government required of the state of Colorado

by the Enabling Act and is thus unconstitutional under the Supremacy Clause.

II.

We review the district court’s “dismissal for lack of standing de novo,

applying the same standard used by the district court.” Petrella v. Brownback, 697

F.3d 1285, 1223 (10th Cir. 2012) (internal quotation marks omitted). “[A]s in all

standing inquiries, the critical question is whether at least one petitioner has alleged

such a personal stake in the outcome of the controversy as to warrant his invocation

of federal-court jurisdiction.” Horne v. Flores, 557 U.S. 433, 445 (2009) (emphasis

in original); see also Watt v. Energy Action Educ. Found., 454 U.S. 151, 160 (1981);

Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264 n.9

(1977). Thus, if at least one plaintiff can demonstrate standing, we need not consider

1
In Colorado, the burden of adopting budgets and funding government
programs falls on the representatives of the state, including plaintiffs in this case.
See Colorado Territorial Act of 1861, ch. 59, 12 Stat. 176 §§ 4, 6, 7; Enabling Act §§ 3,
4; Colo. Rev. Stat. § 30-11-103 (2017) (county governments); Colo. Rev. Stat. § 30-11-
101 (2017) (special districts).

6
standing for the other plaintiffs. The district court determined that the political

subdivision plaintiffs established Article III standing and defendants do not contest

this conclusion on appeal. Even so, the district court dismissed the action for lack of

subject matter jurisdiction because it concluded that two independent doctrines

barred these plaintiffs: political subdivision standing and prudential standing. The

issue before us is whether these other limitations indeed preclude the political

subdivision plaintiffs from establishing standing.

III.

We begin by determining whether there are “prudential standing” limitations

preventing plaintiffs from challenging TABOR. Plaintiffs argue that in light of the

Supreme Court’s decision in Lexmark Int’l, Inc. v. Static Control Components, Inc., 572

U.S. 118 (2014), the district court erred in examining these prudential concerns on a Rule

12(b)(1) motion to dismiss for lack of subject matter jurisdiction.2 We agree. In

2
Defendant argues that we should review plaintiffs’ prudential standing
arguments only for plain error because they failed to argue prudential standing in
district court. Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir. 2011)
(“[I]f the theory simply wasn’t raised before the district court, we usually hold it
forfeited.”). We disagree. Plaintiffs raised prudential standing arguments in their
brief in opposition to defendants’ motion to dismiss before the district court. See
Aplt. App. at 1489–90. In doing so, they specifically addressed Lexmark and the
three principles implicated in prudential standing, “the general prohibition on a
litigant’s raising another person’s legal rights, the rule barring adjudication of
generalized grievances more appropriately addressed in the representative branches,
and the requirement that a plaintiff’s complaint fall within the zone of interests
protected by the law invoked.” Lexmark, 572 U.S. at 125.

7
Lexmark, the Supreme Court described the label “prudential standing” as “misleading”

and “inapt.”3 See id. at 125, 127 n.3. “Although the jurisprudence surrounding standing

and jurisdiction has at times been muddled, we have clearly held that prudential standing

is not a jurisdictional limitation . . . .” Niemi v. Lasshofer, 770 F.3d 1331, 1345 (10th Cir.

2014) (citing Wilderness Soc. v. Kane Cnty., 632 F.3d 1162, 1168 n.1 (10th Cir. 2011)

(en banc)). Accordingly, the district court should not have evaluated defendant’s motion

to dismiss for lack of subject matter jurisdiction on the basis of prudential standing. See

VR Acquisitions, LLC v. Wasatch Cnty., 853 F.3d 1142, 1146 n.4 (10th Cir. 2017).

IV.

Properly situating the prudential standing inquiry does not complete our

analysis. The district court also found that, independently of prudential standing

concerns, the political subdivision plaintiffs are barred by political subdivision

standing restrictions.4

3
Lexmark made clear that the first two principles previously labelled as
prudential standing are not independent jurisdictional hurdles. See id. at 128 n.4
(clarifying that the zone-of-interests test “does not implicate subject matter
jurisdiction” but is a question of whether plaintiff has a valid cause of action), 127
n.3 (generalized grievances are “barred for constitutional reasons, not ‘prudential’
ones”). If the last principle—the limitation on third-party standing—retains any
potency at this stage of litigation, that inquiry is inextricably intertwined with the
merits of the present case. See infra.
4
As an initial matter, plaintiffs note in their opening brief that “[it] is not
entirely clear whether ‘political subdivision standing’ should be treated doctrinally as
another subcategory of prudential standing.” Aplt. Br. At 9–10. In the most recent
precedential case on point, we acknowledged there is “serious reason to doubt”
whether political subdivision standing is a jurisdictional limitation. City of Hugo v.

8
 It is true that political subdivisions generally lack standing to sue their creating

state. Housing Authority of Kaw Tribe of Indians of Oklahoma v. City of Ponca City,

952 F.2d 1183, 1188 (10th Cir. 1991). But “the Supreme Court and courts of appeals

have shied away from erecting an absolute bar.” City of Hugo v. Nichols, 656 F.3d

1251, 1256 (10th Cir. 2011). In certain circumstances we have held that political

subdivisions have standing, and two cases guide our analysis: City of Hugo, and

Branson v. Romer, 161 F.3d 619 (10th Cir. 1998). The district court and plaintiffs

differ in their interpretations of the scope of these holdings.5 Because we conclude

Nichols, 656 F.3d 1251, 1255 (10th Cir. 2011); cf. Brian P. Kennan, Subdivisions,
Standing and the Supremacy Clause: Can a Political Subdivision Sue its Parent State
Under Federal Law?, 103 Mich. L. Rev. 1899 (2005) (noting Supreme Court’s
precedential “political subdivision standing” cases were actually decided on the
merits and not as jurisdictional issues). City of Hugo concluded that it was
nevertheless bound by this court’s prior decision casting the doctrine as one of
jurisdictional standing. Id. at n.4 (referring to Branson v. Romer, 161 F.3d 619 (10th
Cir. 1998)).
5
The dissent agrees with the district court’s understanding of City of Hugo: the
federal statute being enforced must be “directed at protecting political subdivisions.”
Dissent at 4 (citation omitted). Declaring plaintiffs make “virtually no argument that
if a ‘directed at protecting’ requirement applies, it is satisfied,” the dissent concludes
they have waived this dispositive issue. Id. at 7–8 (emphasis in original). But the
dissent itself accentuates the key word here: the dispute is “if” such a requirement
applies. Plaintiffs’ explanation for why the district court is wrong regarding the
application of our political subdivision standing precedents is that the district court
erred in discerning the applicable legal standard. See, e.g., Aplt. Br. at 26 n.13 (“The
District Court erred in concluding that more is needed for a political subdivision to
sue. It stretched the Branson II Court’s dicta to impose two additional requirements
for political subdivision standing . . . . Beyond granting inappropriate weight to dicta,
such requirements represent a broad expansion of precedent that confuses the
standing analysis.”) (emphasis in original). Nonetheless, plaintiffs’ analysis with
respect to their satisfaction of the statutory “zone of interests” test also speaks to this
“directed at protecting” requirement as it is presented by the district court. They

9
that under either proffered formulation the district court erred in dismissing these

claims on a Rule 12(b)(1) motion, we need not determine the precise reach of these

precedents.

Plaintiffs assert the essence of City of Hugo and Branson is that “a political

subdivision has standing to bring a constitutional claim against its creating state

when the substance of its claim relies on the Supremacy Clause and a putatively

controlling federal law.” Branson, 161 F.3d at 628. They identify the dispositive

question as whether the right sought to be vindicated was “written to protect

individual rights, as opposed to collective or structural rights.” Id. Arguing that the

political subdivision plaintiffs here, like those in Branson, seek to vindicate federal

rights that are statutory, structural and collective rather than constitutional, individual

and contractual, they urge the conclusion that as in Branson the political subdivision

plaintiffs here have standing. The government does not contest that employing this

interpretation of our precedents casts the present political subdivision plaintiffs under

the precedential force of Branson rather than City of Hugo. Therefore, if this

interpretation of our case law is to be applied, these plaintiffs are not barred by

political subdivision standing considerations.

Alternatively, the district court, the government, and the dissent all read City

of Hugo as requiring that “the federal statute being enforced must be ‘directed at

have responded to the district court’s political subdivision standing analysis
sufficiently to avoid waiver.

10
protecting political subdivisions.’” 6 Kerr v. Hickenlooper, 259 F. Supp. 3d 1178,

1188 (D. Colo. 2017) (“Kerr”) (citing City of Hugo, 656 F.3d at 1257). Scrutinizing

plaintiffs’ assertion that “the political-subdivision plaintiffs are seeking to enforce

rights granted to them in the Enabling Act,” id. at 1188, the district court countered

6
Plaintiffs and the Amici Curiae both raise credible concerns about this rule
being drawn from our political subdivision standing precedents. City of Hugo’s
analysis focused on whether substantive constitutional rights can be the basis for
political subdivision standing and did not itself engage in any statutory analysis. Our
precedents thus provide no workable standards regarding what language a statute
must include for it to be “directed at protecting political subdivisions” or how such a
rule should be applied. See Amicus Br. of Colo. Ass’n of Sch. Bds. & Colo. Ass’n of
Sch. Execs. at 12. Moreover, courts are already required to examine whether a
plaintiff’s claims fall within the “zone of interests” of a federal statute when
determining whether that plaintiff has a cause of action, see Lexmark, 572 U.S. at
128, and “[s]hoehorning a more stringent requirement for direct statutory protection
into the political subdivision analysis would render the Supreme Court’s well
established zone of interests test superfluous.” Aplt. Br. at 26 n.13.
This reading of City of Hugo’s holding is also contrary to two limiting trends
of the Supreme Court and lower courts: to limit the doctrine of political subdivision
standing, see City of Hugo, 656 F.3d at 1265 (Matheson, J., dissenting), and the more
recent emphasis on federal courts’ “virtually unflagging” obligation to hear and
decide cases within their jurisdiction, see Lexmark, 572 U.S. at 127 n.3, 128 n.4
(limiting the application of prudential standing doctrines as subject matter
jurisdiction inquiries); see also Susan B. Anthony List v. Driehaus, ––– U.S. ––––,
134 S. Ct. 2334, 2347 (2014) (discussing, but not resolving, prudential ripeness
doctrine’s tension with the federal courts’ “virtually unflagging” obligation); Fourth
Corner Credit Union v. Fed. Reserve Bank of Kansas City, 861 F.3d 1052, 1059 n.1
(10th Cir. 2017) (Matheson, J., concurring) (citing Supreme Court’s choice not to
resolve this tension, but continuing to apply ripeness doctrine as binding precedent),
1076 n.13 (Bacharach, J., concurring) (same); Fowler v. Guerin, 899 F.3d 1112, 1116
n.1 (9th Cir. 2018) (citing Supreme Court’s choice not to resolve this tension and
likewise declining to resolve the continuing vitality of ripeness doctrine).
In declining to determine the proper test for political subdivision standing, we
do not resolve these concerns. Even so, we call attention to them as supplementary
support for our holding that these plaintiffs should not have been dismissed on these
grounds.

11
that the Enabling Act’s requirement that the Colorado constitution be “republican in

form” was not designed for such plaintiffs. Instead, the district court concluded that

nearby language in the Enabling Act revealed the requirement of “republican in

form” as being granted to “the people of Colorado.” Id. at 1191 (emphasis added). It

surmised that the political subdivision plaintiffs had been granted no statutory rights

to vindicate this interest, and that they were accordingly barred by political

subdivision standing.

But we cannot decisively determine if the political subdivision plaintiffs here

are excepted from the usual bar to political subdivision standing because doing so

would require impermissibly delving into the merits of the case. Establishing who

was intended to benefit from the Enabling Act’s “republican in form” requirement

necessarily begs the question of what a “Republican Form of Government” is, which

is the issue ultimately to be resolved if any court ever succeeds in reaching the merits

of this case. See Largess v. Supreme Judicial Court for State of Massachusetts, 373

F.3d 219, 226 (1st Cir. 2004) (proceeding to merits to review scope and meaning of

“Republican Form of Government”). Even the district court modulated its conclusion

that “republican in form” does not extend rights to the political subdivision plaintiffs

by stating that it so finds “based on the present record.” Kerr, 259 F. Supp. 3d at

1190–91. But the present record is insufficient to support this determination.

Throughout their various pleadings, plaintiffs maintain that a “Republican

Form of Government” extends protections directly to these political subdivision

plaintiffs that TABOR unconstitutionally intrudes upon. They offer several hooks

12
hinting at their arguments on the merits of the case, including the observations that

the Enabling Act recognized the existence of both counties and public schools prior

to Colorado’s statehood, and that the constitution Colorado adopted pursuant to the

Enabling Act embodied an interdependent structure between the state and its existing

political subdivisions. See Aplt. Reply Br. at 21 n.13.7 Notably, plaintiffs allege that

a “fully effective legislature is an essential component of a Republican Form of

Government,” and that the TABOR Amendment’s substantial interference with the

Colorado General Assembly’s taxing power “renders [it] unable to fulfill its

legislative obligations . . . . [and] similarly undermines the Republican Form of

Government for all subordinate levels of government in the state.” Aplt. App. at

1447 (Complaint at ¶108). They further argue that a “Republican Form of

Government” necessarily extends to each lower level of government because

acceptance of the contrary would beget complete evasion of this requirement through

the delegation of powers to subordinate levels of government that were not equally

7
See also, e.g., Aplt. Br. at 7–8 (“[T]he requirement for a ‘republican form of
government’ applies not only on the state government but also to the state’s local
governments. The Enabling Act, together with the Colorado Constitution enacted in
compliance with the requirements of the Enabling Act, created an integrated structure
of government. . . .”), id. at 27 n.15 (“Colorado’s Constitution established a
republican form of government that was grounded in a structure that embodied a
purposeful interdependence between the state and its political subdivisions. The
Constitution expressly considered school boards and county governments. . . . The
historic existence of the Political Subdivision Plaintiffs is of a piece with Colorado’s
republican form of government and its origins.”), id. at 36 (“From its outset, and
presumably inherent in its acceptance into the Union, the Colorado Constitution’s
guarantee of a republican government entailed an interdependent relationship
between state government and local political subdivisions with the inherent authority
to raise and spend revenue.”).

13
“republican in form.” Id. at 1424 (Complaint at ¶11). Plaintiffs have informed us

that their case on the merits “will offer extensive historical evidence of and legal

proof for the proper meaning of the Guarantee Clause and ‘Republican Form of

Government.’” Aplt. Reply Br. at 25 n.15.

In response, both the government and the district court valiantly struggle to

conclusively establish that the political subdivision plaintiffs are not the beneficiaries

of a “Republican Form of Government.” They extend various conjectural standards

in doing so, including that the constitutional guarantee of a republican form of

government is a guarantee to the state that does not extend to individuals, Aple. Br.

at 20,8 and that this guarantee is to the people of the state, Kerr, 259 F.Supp. 3d at

8
Tellingly, one of the cases the government cites for this proposition is
Largess, in which the First Circuit explicitly decided it could not deny individuals
standing under the Guarantee Clause because the standing issue was “intertwined and
inseparable from the merits of the underlying claim.” Largess, 373 F.3d at 224. The
underlying claim was that the Guarantee Clause extends rights to individuals in at
least some circumstances and the First Circuit footnoted the clarification that “the
Guarantee Clause makes the guarantee of a republican form of government to the
states; the bare language of the Clause does not directly confer any rights on
individuals.” Id. at 225 n.5. Notwithstanding this skepticism as to whether
individuals would ever have enforceable rights under the Guarantee Clause, the First
Circuit held that plaintiffs had standing. It then proceeded to analyze the Guarantee
Clause and ultimately hold that the Largess plaintiffs did not have enforceable rights
under the Guarantee Clause, leaving open the question whether any individuals could
ever have enforceable rights under the Guarantee Clause. See generally id. at 226–
229. Critically for our analysis, the First Circuit’s review of the scope of the
“Republican Form of Government” guarantee did not take place until after the
recognition that this particular question was interwoven into the initial standing
inquiry. Here, in contrast, the merits of the case are not before us.
The dissent’s efforts to distinguish this case as irrelevant are unconvincing.
Although the standing inquiries in Largess and our case differ, the nature of these
inquiries are equally intertwined with the merits in both cases.

14
1191. Citing a variety of reasons, the district court declared it “does not believe” that

the requirement of a Constitution “republican in form” stretches to the political-

subdivision plaintiffs. But each proposed rationale is insufficient to extricate the

standing inquiry from the case on the merits, which is not presently before us on this

appeal from the grant of a motion to dismiss for lack of subject matter jurisdiction

under Rule 12(b)(1). See Initiative & Referendum Inst. v. Walker, 450 F.3d 1082,

1088 (10th Cir. 2006) (en banc) (“For purposes of the standing inquiry, the question

is not whether the alleged injury rises to the level of a constitutional violation. That is

the issue on the merits. For standing purposes, we ask only if there was an injury in

fact, caused by the challenged action and redressable in court.”), cert. denied, 549

U.S. 1245 (2007); Day v. Bond, 500 F.3d 1127, 1137 (10th Cir. 2007) (“‘For

purposes of standing,’ we noted [in Walker], ‘the question cannot be whether the

Constitution, properly interpreted, extends protection to the plaintiff's asserted right

or interest,’ because that would be a determination of the merits of the plaintiffs'

claim under the guise of an evaluation of their standing.”).

The district court forged on, concluding that “the political subdivision

plaintiffs cannot be seeking to enforce a right to a Constitution ‘republican in form’

because they have no such right” and it “is not their injury to assert.” Kerr, 259 F.

Supp. 3d at 1191, 1192. This conclusion is problematic for two reasons: first, to

some extent it contradicts the court’s earlier finding that the political subdivision

plaintiffs have personally suffered a concrete injury directly at the hand of TABOR;

second, and more importantly, this is now dabbling in the merits of this case.

15
Granted, we have previously explained that “the term ‘legally protected interest’

must do some work in the standing analysis ... [and] has independent force and

meaning, without any need to open the door to merits considerations at the

jurisdictional stage.” Walker, 450 F.3d at 1093. We have not explained what that

independent force and meaning are but, in any event, the present case falls nowhere

near the illustrative list of situations we provided in which an asserted “legally

protected interest” is not recognized.9

The district court cited Day to try to unwind the merits from the jurisdictional

issue, stating that the standing issue of whether political subdivision plaintiffs “are

enforcing rights granted to them by the Enabling Act” is “a completely different

inquiry to whether a Republican form of government has been undermined by

TABOR.” Kerr, 259 F. Supp. 3d at 1192. But the distinction between these two

inquiries dissolves when traced back to the root question: both inquires require first

determining the meaning and purpose of the phrase “republican in form.” The

standing question and merit question here are not two separate and independent

issues, analogous to Day, but are instead comparable to Walker: the merits of the

plaintiffs’ claims mirror the standing inquiry as it is framed by the district court. See

9
“For example, a person complaining that government action will make his
criminal activity more difficult lacks standing because his interest is not legally
protected. A person suing to require enforcement of the law against his neighbor
lacks standing, even if he is adversely affected by his neighbor's conduct, because no
one has a legally protected interest in the prosecution of another. Finally, a plaintiff
whose claimed legal right is so preposterous as to be legally frivolous may lack
standing on the ground that the right is not legally protected.” Walker, 450 F.3d at
1093 (internal quotation marks and citations omitted).

16
Day, 500 F.3d at 1138. “[T]he circumstances of this case present a rare instance in

which the standing issue is intertwined and inseparable from the merits of the

underlying claim.” Largess, 373 F.3d at 224; see also Paper, Allied-Indus., Chem.

And Energy Workers Int'l Union v. Cont'l Carbon Co., 428 F.3d 1285, 1292 (10th Cir.

2005) (“The underlying issue in determining whether the jurisdictional question is

intertwined with the merits is whether resolution of the jurisdictional question requires

resolution of an aspect of the substantive claim.”) (internal brackets and citation omitted);

Sizova v. Nat. Inst. of Standards & Tech., 282 F.3d 1320, 1324 (10th Cir. 2002)

(“[S]ubject matter jurisdiction and the merits are considered to be intertwined when

subject matter jurisdiction is dependent upon the same statute which provides the

substantive claim in the case.”) (internal brackets, quotation mark, and citation omitted);
10
cf. Kennan, supra note 4 (arguing that questions of whether political subdivisions

should be barred from bringing suit because it would impede state sovereignty can

10
The dissent believes that political subdivision standing requires a searching
analysis of the relevant federal statute’s intended beneficiaries “as part of a threshold
jurisdictional standing inquiry . . . . [i]rrespective of whether this may sometimes
resemble a merits analysis.” Dissent at 12 (emphasis in original). However, this
ignores our cases recognizing that it is sometimes appropriate to decide a
jurisdictional issue at a later stage in the proceeding if that issue is intertwined with
the merits of the case. In the same manner, it is noteworthy that even where our
precedents cast the political subdivision standing doctrine as jurisdictional, they
address it at later stages in litigation and with access to considerably more
information than entailed by the Rule 12(b)(1) motion here. See City of Hugo, 656
F.3d at 1254 (district court granted summary judgment); Branson, 161 F.3d at 627
(district court held hearing on plaintiffs’ request for preliminary injunction, then
issued “very careful and thorough opinion” following cross-motions for summary
judgment).

17
only be determined by addressing the merits of the subdivision’s claims that state

action violates the Supremacy Clause).

The various conclusions the district court and parties draw regarding

“republican in form” are not of most interest to our analysis. Rather, it is the attempt

itself which betrays the fundamental hitch—that these standing arguments turn on the

merits of plaintiffs’ claims, namely the meaning, scope, and intended beneficiaries of

the Enabling Act’s requirement that Colorado’s constitution be “republican in form.”

See Aplt. Reply Br. at 24. We are not commenting on the validity or weight of any of

these arguments but merely highlighting the degree of uncertainty present at this

stage. See Schramm v. Oakes, 352 F.2d 143, 149 (10th Cir. 1965) (holding standing

inquiry to be intertwined with the merits because “[b]ased then on what we have, we

are unable to say with any degree of legal certainty that the appellants could not

make out a valid cause of action”). The merits of these issues were not presented to

the district court and are not before us. We thus cannot say with confidence what is

entailed by the Enabling Act’s requirement for a government “republican in form,”

and neither can we say with confidence what is not.

This uncertainty is particularly apparent when we examine the paucity of

jurisprudence concerning the scope and meaning of guarantees to a “Republican

Form of Government.” As tellingly described by the First Circuit,

scholars have interpreted this [republican form of government] portion of the
Guarantee Clause in numerous, often conflicting, ways. And 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.”

18
Largess, 373 F.3d at 226–27 (citations omitted); see also Aplt. Reply Br. at 16 n.7

(citing Minor v. Happersett, 88 U.S. 162, 175–77 (1874)). There can be no doubt

that disentangling these answers will be an immense task; however, this is not a task

to be undertaken on a Rule 12(b)(1) motion such as this.

We sympathize with the reality that “standing doctrine sometimes has a

frustratingly metaphysical quality.” Walker, 450 F.3d at 1097. But “a federal court’s

obligation to hear and decide cases within its jurisdiction is virtually unflagging.”

Lexmark Int’l, Inc., 572 U.S. at 126; see also Odom v. Penske Truck Leasing Co.,

L.P., 893 F.3d 739, 743 (10th Cir. 2018) (citing Lexmark to construe prudential

restraints narrowly). Irrespective of whether or not a republican form of government

is eventually found to be guaranteed to these particular plaintiffs, the district court

cannot properly reach this issue as a jurisdictional matter. Because these political

subdivision plaintiffs have Article III standing and cannot be irrefutably barred by

alternative standing doctrines, the district court should not have dismissed the

complaint for a lack of subject matter jurisdiction.

We REVERSE and REMAND to the district court for further proceedings.

19
17-1192, Kerr v. Polis

HOLMES, Circuit Judge, dissenting.

I respectfully dissent. Unlike the majority, I would affirm the district

court’s judgment based on the political-subdivision standing doctrine. For the

political-subdivision plaintiffs (“Plaintiffs”) to have standing, our decision in City

of Hugo v. Nichols, 656 F.3d 1251 (10th Cir. 2011), requires that they seek to

enforce a federal statute directed at protecting or specifically providing rights to

political subdivisions (sometimes referred to collectively herein as the “directed

at protecting” requirement). The district court ruled against them on this

dispositive issue, and their argument challenging that ruling is so meager as to

constitute waiver. Moreover, their argument—insofar as I am able to piece it

together—also fails on the merits. The majority truncates its analysis before

reaching these issues, ruling that doing so would require “impermissibly delving

into the merits of the case.” Maj. Op. at 12. However, our prior cases counsel

that a court must consider those issues in answering the threshold question of

standing and that it may do so without impermissibly implicating the merits.

Accordingly, I respectfully dissent.

As we observed in Branson School District RE–82 v. Romer, 161 F.3d 619

(10th Cir. 1998), it is “well-settled” in this circuit that a political subdivision

“may not bring a federal suit against its parent state” on the basis of certain

constitutional provisions. Id. at 628. However, Branson also described
limitations on this bar: notably, it suggested that the bar applies only “when the

constitutional provision that supplies the basis for the complaint was written to

protect individual rights, as opposed to collective or structural rights.” Id. In

particular, the Branson court was unable to locate any Supreme Court decision

barring a subdivision from asserting “the structural protections of the Supremacy

Clause . . . against its creating state.” Id. at 629.

The political-subdivision plaintiffs in Branson (Colorado school districts)

brought just such a viable challenge, primarily to state constitutional changes

modifying the terms under which a state land board would manage its holdings.

Id. at 627. Specifically, the land board was no longer required to manage its

holdings to secure the “maximum possible amount” for a public school fund;

rather, the board was simply required to manage its holdings to “produce

reasonable and consistent income over time.” Id. The plaintiffs challenged these

changes “under the Supremacy Clause and the Colorado Enabling Act,” and the

Branson court concluded that the challenge could proceed. Id. at 629; see also id.

at 630 (“[O]ur holding simply allows a political subdivision to sue its parent state

when the suit alleges a violation by the state of some controlling federal law. The

Supremacy Clause guarantees no less.”). In reaching this conclusion, Branson

noted that the plaintiffs were both “substantially independent” of the state of

Colorado and, “[m]ost importantly,” they were “‘essentially’ the beneficiaries of

2
the federal trust at issue.” Id. at 629. That is, the Enabling Act had granted

millions of acres of “school lands” to the State of Colorado for “the support of the

‘common schools,’” and “[t]oday’s public school districts are the direct political

descendants of those 19th Century ‘common schools.’” Id.

Nearly thirteen years later, our court decided City of Hugo. There, we

observed that the Supremacy Clause is not itself the source of any federal rights;

instead, it secures federally protected rights when they conflict with state law.

656 F.3d at 1256. As such, “a plaintiff alleging a Supremacy Clause claim is

actually alleging a right under some other federal law, which trumps a contrary

state law by operation of the Supremacy Clause.” Id. After summarizing our case

law regarding political-subdivision standing (including Branson), City of Hugo

was unable to find “a single case in which the Supreme Court or a court of

appeals has allowed a political subdivision to sue its parent state under a

substantive provision of the Constitution.” Id. at 1257. “Instead, courts have

allowed such suits only when Congress has enacted statutory law specifically

providing rights to municipalities.” Id. (emphasis added); see also id.

(harmonizing prior cases finding standing and observing that, in those cases, “the

source of substantive rights was a federal statute directed at protecting political

subdivisions, and the Supremacy Clause was invoked merely to guarantee, as a

structural matter, that federal law predominates over conflicting state law”

3
(emphasis added)). Because the claims in City of Hugo were based on a

substantive provision of the Constitution, i.e., the dormant Commerce Clause, and

because “the Constitution does not contemplate the rights of political subdivisions

as against their parent states,” standing was lacking. Id. at 1257–58.

Here, political subdivisions of the State of Colorado challenge Colorado’s

Taxpayer Bill of Rights (“TABOR”) under the Colorado Enabling Act and the

Supremacy Clause, contending that TABOR contradicts the Enabling Act’s

requirement that Colorado maintain a “republican form of government.” 1 See

Aplts.’ App., Vol. XII, at 1424, 1426, 1448 (Fourth Am. Compl., filed Dec. 6,

2016). The district court analyzed the case under Branson and City of Hugo,

ruling that the Plaintiffs did not establish that they were seeking to enforce “any

rights granted to them under the Enabling Act.” Id. at 1575–84 (Op. & Order,

dated May 4, 2017); see id. at 1578 (“City of Hugo explains that the federal

statute being enforced must be ‘directed at protecting political subdivisions.’”

(quoting City of Hugo, 656 F.3d at 1257)). The district court reviewed several

paragraphs of the Fourth Amended Complaint that the Plaintiffs had cited,

1
Although the Fourth Amended Complaint alleges that TABOR also
runs afoul of other laws, e.g., the federal Constitution’s analogous Guarantee
Clause and Colorado’s state constitution, Aplts.’ App., Vol. XII, at 1447–49, the
Plaintiffs’ political-subdivision standing arguments are premised on the Enabling
Act and Supremacy Clause, Aplts.’ Opening Br. at 24–25.

4
concluding that most of these paragraphs simply made “no mention of rights

being granted in the Enabling Act to the [Plaintiffs].” Id. at 1579.

In the district court’s view, the Fourth Amended Complaint’s only

“potentially relevant paragraphs” were Paragraphs 30 and 34. Id. at 1580.

Paragraph 30 contended that the Enabling Act required “use of, and revenue from,

the federal lands ceded to the State upon admission as a state to be dedicated to

‘the support of common schools’ (Section 7), ‘support of a State university’

(Section 10), and ‘the two sections of land in each township herein granted for the

support of common schools . . . the proceeds to constitute a permanent

school-fund, the interest of which to be expended in the support of common

schools’ (Section 14).” Id. at 1430 (omission in original). And, according to

Paragraph 34, TABOR prevents “the State and its local school districts from

fulfilling their obligations, derived from the original state constitution, and its

derivation from the Enabling Act, adequately to fund the public schools of the

State.” Id. at 1431.

The district court concluded that these allegations were insufficient to

establish standing. Preliminarily, the district court ruled that none of these

provisions provided any succor to Plaintiffs not associated with public schools,

i.e., boards of county commissioners or special districts. See id. at 1580. It also

observed that the briefing on this issue was limited, and that the Plaintiffs

5
“ma[d]e no effort” to explain how the cited paragraphs of the Fourth Amended

Complaint, and the authorities therein, gave rise to standing. Id. Moreover, the

district court rejected the Plaintiffs’ reliance on Section 10 of the Colorado

Enabling Act because none of them are state universities, and it rejected the

Plaintiffs’ allegations concerning Sections 7 and 14 of the Enabling Act as

inapposite. See id. at 1581–82. That is, while Sections 7 and 14 concern

“support of common schools,” they do not implicate the right to a “republican

form of government” sought to be enforced here; in other words, unlike the suit

brought in Branson, this suit does not directly concern the land-trust and funding

issues addressed by these provisions of the Enabling Act. See id. The district

court also observed that, although the Enabling Act does expressly contemplate a

state constitution that is “republican in form,” the Enabling Act counsels that such

a constitution is for “the people of [Colorado],” see 18 Stat. 474 §§ 4–5 (1875),

with no specific mention of political subdivisions. Aplts.’ App., Vol. XII, at

1583.

On appeal, the Plaintiffs contend that their suit passes muster under

Branson, and indeed is more like that case than like City of Hugo, because they

seek to vindicate structural rights, not individual ones. Aplts.’ Opening Br. at 23.

In a footnote, they argue that the district court impermissibly “stretched” dicta in

Branson (not City of Hugo) to require that they sue to enforce a statute “directed

6
at protecting political subdivisions.” Id. at 26 n.13. They also contend that City

of Hugo is distinguishable because the claim in City of Hugo was “an ‘individual’

claim under the terminology of Branson” and that their claim is distinct from that

in City of Hugo because their claim relies on a federal statute (the Enabling Act),

rather than a substantive constitutional provision. Id. at 23, 28–30.

I would reject any argument that City of Hugo is inapplicable. While it is

true that City of Hugo directly addressed enforcement of the dormant Commerce

Clause, City of Hugo expressly distinguished that claim from one where “the

source of substantive rights was a federal statute directed at protecting” or

“specifically providing rights to” political subdivisions, and, critically, it

observed that our cases (and, indeed, all the Supreme Court and court of appeals

cases it could find) have allowed political-subdivision standing only in the

presence of the latter showing. See 656 F.3d at 1257 (emphases added). City of

Hugo also opined that “Branson simply cannot be read to embrace the notion that

use of the terms ‘collective’ and ‘structural’ meant to refer to anything other than

the situation where a political subdivision has brought suit against its parent to

vindicate substantive federal statutory rights through the Supremacy Clause.” Id.

at 1262. Thus, our most recent comprehensive exploration of this issue, City of

Hugo, requires a political-subdivision plaintiff’s “structural” claim to be

undergirded by a statute providing it with rights to enforce.

7
 Because City of Hugo applies, the Plaintiffs must seek to enforce a federal

statute “directed at protecting political subdivisions” or “specifically providing

rights to” them. Id. at 1257. Having trained its attention on distinguishing City

of Hugo, however, the Opening Brief makes virtually no argument that this

“directed at protecting” requirement is satisfied. Instead, the Opening Brief

generally reiterates the nature of the Plaintiffs’ claims, i.e., they “allege that

TABOR violates the provision of the Enabling Act requiring a republican form of

government, and that such violation is actionable against the state under the

Supremacy Clause,” Aplts.’ Opening Br. at 24, and they “seek to enforce a claim

under the Enabling Act: the right to a republican form of government,” id. at 28.

In connection with these cursory arguments, the Plaintiffs cite essentially the

same paragraphs of the Fourth Amended Complaint that the district court found

unavailing; yet, significantly, they offer no explanation as to why the district

court’s analysis of the legal import of these paragraphs was wrong. See id. at 24,

28. In light of this limited argument, I would deem the issue waived. See, e.g.,

United States v. Cooper, 654 F.3d 1104, 1128 (10th Cir. 2011) (citing “well-

settled” principle that “[a]rguments inadequately briefed in the opening brief are

waived” (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir.

1998))); see also Reedy v. Werholtz, 660 F.3d 1270, 1275 (10th Cir. 2011) (“The

8
argument section of Plaintiffs’ opening brief does not challenge the court’s

reasoning on this point. We therefore do not address the matter.”).

In any event, the limited argument that I can discern is unavailing. It seems

that, in the Plaintiffs’ view, Branson establishes that political-subdivision

standing is broadly available for claims under the Enabling Act, and they are

simply following the trail blazed in that case: “Here, as in the Branson litigation,

the [Plaintiffs] claim the protections afforded under a federal statute, the Enabling

Act, which imposes the structural requirement that Colorado’s government be

‘republican in form.’” Aplts.’ Opening Br. at 24; see also id. at 27 (“That same

Enabling Act conditioned Colorado’s admission into the Union upon its enactment

of a constitution that was ‘republican in form.’”). But the Plaintiffs elide a key

distinction relied upon by the district court and consistent with both Branson and

City of Hugo: the issues in Branson directly implicated specific provisions of the

Enabling Act providing lands “for the support of the ‘common schools,’” of

which the school-district plaintiffs were “direct political descendants.” 161 F.3d

at 629. Indeed, Branson deemed it “[m]ost important[]” that the school districts

were “essentially” the beneficiaries of the land trust that had been affected by

state constitutional changes. Id. Here, in contrast and as the district court

correctly observed, there is no similarly close link between the “republican form

of government” that the Plaintiffs claim TABOR contravenes and the land-

9
management and funding issues addressed in the provisions of the Enabling Act

that the Plaintiffs cited in their Fourth Amendment Complaint and continue to rely

on. See Aplts.’ App., Vol. XII, at 1581–82. I also agree with the district court

that, to the extent that the Enabling Act expressly requires a republican form of

government, it does not suggest that the requirement is directed at protecting or

specifically providing rights to Colorado’s political subdivisions. Id. at 1582–83.

Our political-subdivision standing cases require a plaintiff to show that its

claims are undergirded by a federal statute directed at protecting or providing

rights to it. The Plaintiffs have not satisfied this standard; indeed, they present

very limited argument on this issue and make only feeble challenges to the district

court’s ruling. Because the political-subdivision standing bar is an independent

jurisdictional bar, I would affirm the district court’s ruling solely on this basis.

Cf. Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 425 (2007)

(holding that federal court could dismiss case on forum non conveniens grounds

without conclusively deciding issues of subject-matter jurisdiction).

The majority makes a different determination, opining that the district court

“could not properly reach its conclusions at this stage of litigation.” Maj. Op. at

4. Before I discuss my reasons for diverging from the majority’s views, I note

several issues which are left unresolved by the majority’s opinion. First, although

the majority evinces some uncertainty as to whether political-subdivision standing

10
is properly considered a type of “prudential standing”—notably, intimating that

Lexmark International, Inc. v. Static Control Components, Inc., 572 U.S. 118

(2014), may have put in doubt on whether this form of standing is a jurisdictional

bar, see Maj. Op. at 8-9 n.4, 11 n.6—the majority ultimately follows our prior

cases that treat political-subdivision standing as a jurisdictional matter, and it thus

analyzes political-subdivision standing entirely separately from prudential

standing. See City of Hugo, 656 F.3d at 1255 n.4 (observing that Branson “casts

the matter [of political-subdivision standing] as one of jurisdictional standing”).

Second, although the majority voices concerns about the contours and workability

of applying the “directed at protecting” component of City of Hugo, it expressly

declines to “resolve” these concerns (albeit while citing them as “supplementary

support” for its result). Maj. Op. at 11 n.6. Third, it declines to determine the

“precise reach” of Branson and City of Hugo or choose definitively between the

differing readings offered by the Plaintiffs and the district court because, in its

view, “under either proffered formulation the district court erred.” Id. at 10.

Instead, the crux of the majority’s analysis is that “[e]stablishing who was

intended to benefit from the Enabling Act’s ‘republican in form’ requirement

necessarily begs the question of what a ‘Republican Form of Government’ is,

which is the issue ultimately to be resolved if any court ever succeeds in reaching

the merits of this case.” Id. at 12. In other words, in the majority’s view,

11
grappling with the “directed at protecting” component of City of Hugo would

require “impermissibly delving into the merits of the case.” Id. at 12.

I part ways with the majority here. Our cases do generally emphasize the

importance of distinguishing between the standing inquiry and merits issues, with

the latter including the elements of a claim and whether that claim has been

successfully stated. See id. at 15–16; see also, e.g., Day v. Bond, 500 F.3d 1127,

1137 (10th Cir. 2007) (“‘For purposes of standing,’ . . . ‘the question cannot be

whether the Constitution, properly interpreted, extends protection to the

plaintiff’s asserted right or interest,’ because that would be a determination of the

merits of the plaintiffs’ claim under the guise of an evaluation of their standing.”

(quoting Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1092 (10th Cir.

2006) (en banc))). However, the cases the majority relies on do not involve the

political-subdivision standing doctrine or the embedded “directed at protecting”

requirement. In that context, as I have set forth supra, City of Hugo is our

primary guidepost. That case reiterates that political-subdivision standing is

jurisdictional, see 656 F.3d at 1255 n.4, and requires a political-subdivision

plaintiff to show—as part of a threshold jurisdictional standing inquiry—that it

seeks enforcement of a federal statute directed at protecting or specifically

providing rights to political subdivisions like it, id. at 1257. Thus, in analyzing

standing in this specific context, City of Hugo requires a federal court to analyze

12
the nature of the claim or rights at issue, at least as far as is necessary to

determine who may seek to enforce them. Irrespective of whether this may

sometimes resemble a merits analysis, it is precisely what City of Hugo

contemplates.

I note further that falling back on Branson is of no avail to the majority’s

position: although a “directed at protecting” requirement is not clearly stated in

that case, Branson still considered and ultimately found “[m]ost important[]” to

its analysis the fact that the plaintiffs were “‘essentially’ the beneficiaries of the

federal trust at issue.” 161 F.3d at 629. Thus, our precedent certainly permits,

and in my view requires, a court to determine a federal statute’s beneficiaries as

part of its standing analysis and contemplates that a court may make such a

determination without impermissibly implicating the merits. I respectfully submit

that the majority, in concluding otherwise, fails to correctly apply this precedent.

Nor does the majority attempt to persuasively distinguish this precedent, much

less demonstrate that it has been superseded by subsequent Supreme Court

authority. 2

2
I find irrelevant the analysis in Largess v. Supreme Judicial Court for
State of Massachusetts, 373 F.3d 219 (1st Cir. 2004) (per curiam), which the
majority repeatedly cites. See Maj. Op. at 12-14, 13 n.7. Largess’s ostensibly
relevant standing analysis, where that panel ruled standing was “intertwined
[with] and inseparable from the merits of the underlying claim,” concerned
whether the plaintiffs shared “an undifferentiated harm with other voters,” 373
F.3d at 224, not the political-subdivision standing doctrine. Of course, this out-

13
 Much of the majority’s disquiet seems to be based on a perceived lack of

“workable standards” and its view that “disentangling” the meaning of

“republican form of government” will be an “immense task” not amenable to

resolution in the context of a Rule 12(b)(1) motion. Maj. Op. at 11 n.6, 18; see

also id. at 12 (stating that these issues cannot be resolved on “the present record”

and that the Plaintiffs’ briefing “hint[s] at” complex merits arguments concerning

the meaning of this phrase); id. at 13 (suggesting that the district court and the

State “valiantly struggle to conclusively establish” that the Plaintiffs are not

beneficiaries of a “republican form of government”); id. at 17 (citing “the degree

of uncertainty present at this stage”). I disagree: as I observed supra, the

Plaintiffs have made virtually no argument at this stage that, if a “directed at

protecting” requirement applies, it is satisfied. See also id. at 17 (appearing to

acknowledge that arguments concerning the “meaning, scope, and intended

beneficiaries” of the “republican in form” requirement “were not presented to the

district court and are not before us”). Our political-subdivision standing cases

and general standing principles both counsel that it is the Plaintiffs’ burden to

satisfy this standard. See, e.g., Utah Ass’n of Ctys. v. Bush, 455 F.3d 1094, 1100

of-circuit decision also did not purport to apply (and in fact predated) our court’s
decision in City of Hugo, which is binding precedent.

14
(10th Cir. 2006) (observing that party seeking to invoke jurisdiction must

establish standing).

Additionally, complexity alone does not permit a court to forestall the full

evaluation of jurisdictional issues. Earlier in this litigation, a panel evaluated the

“justiciability hurdle” of the political-question doctrine under a six-factor test,

evaluating at length, for example, whether the federal constitutional guarantee of

a “republican form of government” is textually committed to another branch,

whether judicially discoverable and manageable standards exist for interpreting

that guarantee, and whether evaluating the issue requires making policy

determinations. Kerr v. Hickenlooper, 744 F.3d 1156, 1172, 1176–81 (10th Cir.

2014), cert. granted, judgment vacated on other grounds, 135 S. Ct. 2927 (2015);

see also Morgan v. McCotter, 365 F.3d 882, 887 (10th Cir. 2004) (observing that

“the question of justiciability implicates this court’s jurisdiction”). And it did so

with special attention to not “reaching or considering the merits.” See Kerr, 744

F.3d at 1179. I see no reason why—if required—a similarly searching analysis

might not be undertaken in this context, and similarly fine distinctions might not

ultimately be drawn between standing and merits issues, in evaluating whom the

Enabling Act’s requirement of a republican form of government was directed at

protecting or specifically providing rights to.

15
 To be sure, there may be conceivable arguments for reevaluating or

cabining our political-subdivision standing doctrine. But the majority does not

meaningfully grapple with those arguments here, let alone expressly adopt them.

Instead, the majority purports to accept the jurisdictional, decisional rubric laid

out in our political-subdivision standing cases but then effectively departs entirely

from the requirements of that rubric in resolving this case. I cannot travel this

path.

Therefore, for the foregoing reasons, I respectfully dissent.

16