By Sharon Eubanks

In the last two LegiSource articles, we’ve talked about what a citizen must do to show that he or she has standing to sue someone to enforce a statute or to sue the government to enforce a statute or the constitution. What if the person who wants to sue is a legislator? Does a legislator have standing to sue in his or her capacity as a legislator to challenge language in the constitution? There is a case in federal court right now that is trying to answer that question.

In May of 2011, a group of legislators, school board members, and other taxpayers filed a lawsuit in federal court claiming that the Taxpayer’s Bill of Rights (TABOR) violates several clauses of the United States Constitution – including the clause that guarantees to every state a republican form of government – as well as certain federal statutes. This group asserts that, by removing the taxing power of the Colorado General Assembly, TABOR renders the General Assembly unable to effectively fulfill its legislative obligations in a representative democracy and a republican form of government. In July of 2015, we posted an article that more fully explains the Kerr v. Hickenlooper lawsuit.

Although Kerr v. Hickenlooper is over five years old, a court has yet to consider any of the claims raised in the case. The case has been stuck on the issue of whether the legislators have standing to bring the lawsuit. As you may recall, to have standing to sue, a person must demonstrate that she has been harmed by the person she’s suing and that she has a right to sue for that harm. In this case, the legislators must show that TABOR has harmed an interest that they have the authority to protect. If they can’t show that, the lawsuit will be dismissed.

In July of 2012, the federal district court held that the legislators did have standing to bring the lawsuit, and the Tenth Circuit Court of Appeals agreed. The matter then was appealed to the United States Supreme Court.

About a year ago, the Supreme Court issued a grant, vacate, and remand (GVR) order in the case. The order basically sent the case back to the Tenth Circuit Court of Appeals to reconsider whether the legislators have standing based on the Supreme Court’s decision in a case called Arizona State Legislature v. Arizona Independent Redistricting Commission et al, 576 U.S. ___ (2015). The Arizona decision considered whether the Arizona State Legislature had standing to challenge the constitutionality of a redistricting commission that was created by a ballot initiative to draw congressional districts. In that case, the Court held that the Legislature did have standing because the Legislature, as an institution, had an interest in redrawing the congressional districts for Arizona that the legislature could sue to protect. In this case, the Legislature, as an institution, brought the suit as the plaintiff.

On June 3, 2016, the Tenth Circuit Court of Appeals ruled that the legislators in Kerr v. Hickenlooper do not have standing to bring the lawsuit.

Based on the Arizona decision, the court of appeals determined that the first question in deciding whether a group of legislators has standing is to decide whether the legislators are claiming an institutional injury. This is an injury to the power of the legislature as a whole rather than an injury to an individual legislator’s interest. The court of appeals concluded that individual legislators do not have standing if they are alleging an institutional injury and not an individual injury.

The court of appeals then looked to see whether the legislators in Kerr v. Hickenlooper alleged injury to an institutional interest. The court found that they did because the legislators’ claim is based on the loss of legislative power to raise taxes, which impacts all members of the General Assembly equally.

The court of appeals then asked whether the legislators who are suing have authority to represent the Colorado General Assembly as an institution and found that they do not. The legislators are pursuing their claims in their individual capacities and not as representatives of the General Assembly. By contrast, in Arizona, the Arizona Legislature as an institution filed the suit. Since they are not authorized to represent the General Assembly or either the House of Representatives or the Senate, the court of appeals determined that the legislators are not institutional plaintiffs. And that means they do not have authority to sue for an injury to an institutional interest.

As a result, the court concluded that it must reverse its previous decision and found that the individual legislators in Kerr v. Hickenlooper do not have standing because they are trying to protect an institutional interest but they do not have authority to represent the entire institution. The court then sent the case back to the federal district court.

The group of legislators, school board members, and other taxpayers filed a petition for rehearing with the Tenth Circuit Court of Appeals on July 8, asking the court to reconsider its decision based on additional arguments made by the group. The court denied the petition. At this point, it appears the school board members and other taxpayers who brought the suit will now try to establish standing to sue on remand to the federal district court. Stay tuned for further updates.