Kerr v. Polis
Citation20 F.4th 686
Date Filed2021-12-13
Docket17-1192
Cited25 times
StatusPublished
Full Opinion (html_with_citations)
FILED
Appellate Case: 17-1192 Document: 010110617974 United
Date Filed: States CourtPage:
12/13/2021 of Appeals
1
Tenth Circuit
December 13, 2021
Christopher M. Wolpert
UNITED STATES COURT OF APPEALS 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; No. 17-1192
BOB BRIGGS, Westminster City (D.C. No. 1:11-CV-01350-RM-NYW)
Councilman; BRUCE W. BRODERIUS, (D. Colo.)
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, AKA Molly Markert;
MEGAN J. MASTEN; MICHAEL
MERRIFIELD; MARCELLA L.
MORRISON, AKA Marcy L. Morrison;
JOHN P. MORSE, Colorado State
Senator; PAT NOONAN; BEN
PEARLMAN, Boulder County
Commissioner; WALLACE PULLIAM;
FRANK WEDDIG, Arapahoe County
Appellate Case: 17-1192 Document: 010110617974 Date Filed: 12/13/2021 Page: 2
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.
------------------------------
COLORADO ASSOCIATION OF
Appellate Case: 17-1192 Document: 010110617974 Date Filed: 12/13/2021 Page: 3
SCHOOL EXECUTIVES; COLORADO
ASSOCIATION OF SCHOOL
BOARDS; 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. 11-cv-01350-RM-NYW)
Sarah M. Mercer (David E. Skaggs, Dentons US LLP, Denver Colorado, Mark P.
Johnson, Dentons US LLP, Kansas City, Missouri, Herebert L. Fenster, Covington &
Burling, Washington, D.C., Michael F. Feeley, Carrie E. Johnson, and John A.
Herrick, Brownstein Hyatt Farber Schreck LLP, Denver Colorado, with her on the
supplemental brief), Brownstein Hyatt Farber Schreck LLP, Denver, Colorado, for
Appellants.
Michael Kotlarczyk, Assistant Attorney General (Philip J. Weiser, Attorney General,
Eric R. Olson, Solicitor General, Megan Paris Rundlet, Assistant Solicitor General,
Stephanie Lindquist Scoville and Kathleen Spalding, Senior Assistant Attorneys
General, Melody Joy Fields and Shelby A. Krantz, Assistant Attorney General
Fellows, with him on the supplemental briefs), Colorado Department of Law, Denver,
Colorado, for Appellee.
Before TYMKOVICH, Chief Judge, BRISCOE, HARTZ, HOLMES,
BACHARACH, PHILLIPS, McHUGH, MORITZ, and EID, Circuit Judges.
TYMKOVICH, Chief Judge.1
1
Chief Judge Tymkovich and Judges Hartz, Holmes, Bacharach, McHugh,
Moritz, and Eid join the opinion of the court and affirm the dismissal below without
prejudice. Judge Briscoe, joined by Judge Phillips, dissents and would reverse the
dismissal below and remand. Chief Judge Tymkovich, joined by Judges Hartz,
Holmes, and Eid, concurs with the opinion of the court but also would convert the
dismissal below to one with prejudice. Chief Judge Tymkovich, joined by Judges
Hartz and Eid, would further conclude that the Plaintiffsâ claim was nonjusticiable
under the political question doctrine. Judge Bacharach, joined by Judges McHugh
and Moritz, concurs, explaining why the court affirmed without prejudice.
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Popular knowledge about the American legal system is that everyone can have
his or her day in court. But a decade after various Plaintiffs challenged Coloradoâs
Taxpayerâs Bill of Rights (TABOR), we have yet to determine who, if anyone, can
have that day in this case.
In their complaint, first filed in 2011 and most recently amended in 2016, the
Plaintiffsâwho include school districts and other political subdivisionsâallege that
TABORâs requirement of voter approval for tax increases deprives them of a
Republican Form of Government protected by the United States Constitution and
Coloradoâs statehood Enabling Act. According to the Plaintiffs, TABORâs constraints
and voter-involvement in tax and spending policy effectively deprive them and the
people of the State of Colorado of a truly representative government.
The Governor responded by bringing a motion to dismiss the claims for lack of
subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). He argued
that the Plaintiffs lacked standing to sue the State of Colorado under the Republican
Form of Government Clauseâalso known as the Guarantee Clause, see U.S. Const.
art. IV, § 4âbecause political subdivisions cannot sue their parent state.
Applying this circuitâs precedent, the district court reviewed the complaint to
determine whether the various school districts and other political subdivisions had
âpolitical subdivision standing.â Based on this doctrine, the court dismissed the
complaint for lack of subject-matter jurisdiction. It concluded that neither the
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Guarantee Clause nor the Enabling Act authorized the political subdivisions to sue the
state. A panel of this court rejected that conclusion, finding that the Plaintiffs met our
requirements for political subdivision standing.
We affirm the district courtâs dismissal of the Plaintiffsâ claims without
prejudice. We disagree with the district courtâs reasoning on standing and therefore it
erred in dismissing the claims under Rule 12(b)(1). Nevertheless, it is appropriate to
convert the Governorâs Rule 12(b)(1) motion to a motion to dismiss under Rule
12(b)(6). In doing so, we depart from our previous cases in which we treated the limits
on actions political subdivisions can bring against their parent states as a threshold
inquiry about the courtâs subject-matter jurisdiction. Instead, we conclude these limits
are part of a merits inquiry that addresses whether any constitutional or statutory
provisions allow political subdivisions to bring a cause of action against their parent
state. The Plaintiffs have not identified any provision in the Constitution or the
Enabling Act authorizing Coloradoâs political subdivisions to challenge TABOR.
Thus, the Plaintiffs have failed to state a claim on which relief can be granted.
A majority of this en banc panel agrees that we should affirm the disposition
based on Plaintiffâs failure to state a claim. Thus, the dismissal below is affirmed.
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I. Background
A. Factual Background
After ten years of litigation, this case is stuck in neutral. Despite carving a well-
worn path from the district court, to this court, to the Supreme Court, and back, we
have yet to finally decide whether any of the Plaintiffs are entitled to have the merits
of their claims considered. A brief background of this litigation history provides
helpful context for the scope of our decision today and why the day has come to affirm
the dismissal of the complaint.
TABORâcodified at Article X, Section 20 of the Colorado Constitutionâwas
adopted by voter initiative in 1992. TABOR codifies various rules that place the
taxing power directly in the hands of the people, limiting the power of the state and its
political subdivisions to raise revenue. Under TABOR, government entities must
obtain voter approval for âany 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 net tax revenue gain to any
district.â Colo. Const. art. X, § 20, cl. 4(a). TABOR also places limits on the stateâs
year-to-year spending, id. at cl. 7(a), and the use of excess revenue by the state and its
political subdivisions, id. at cl. 7(d). Because it was passed as a constitutional
amendment, TABOR can be revoked or amended only by voter approval. Id. at art.
XIX, § 2 (â[A]mendments shall be submitted to the registered electors of the state for
their approval or rejection, and such as are approved by a majority of those voting
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thereon . . . shall become part of this constitution.â). Though numerous efforts have
been made to repeal TABOR since its enactment, it has proved remarkably durable.
As recently as November 2020 voters have rejected efforts to significantly overhaul or
repeal TABOR.
B. Procedural Background
In 2011, the Plaintiffsâwho include individual state legislators, educators, and
various school districts and other political subdivisionsâbrought suit against then-
Governor John Hickenlooper, seeking injunctive and declaratory relief from TABOR.
They claimed that TABOR violates the guarantee of a âRepublican Form of
Governmentâ found in Article IV, Section 4 of the United States Constitution.
According to the Plaintiffs, TABOR also violates a similar guarantee found in
Coloradoâs Enabling Act. See 18 Stat. 474, § 4 (declaring that the stateâs âconstitution
shall be republican in formâ). They argue that under the Supremacy Clause, the
Enabling Actâas federal lawâshould trump any conflicting state law. See U.S.
Const. art. VI, cl. 2 (âThis Constitution, and the Laws of the United States which shall
be made in Pursuance thereof . . . shall be the supreme Law of the Land.â).
The Governor moved to dismiss the complaint, arguing the Plaintiffs lacked
standing. The district court disagreed with the Governor, concluding that the
individual state legislators had standing to challenge TABOR. The Governor appealed
that decision to this court, which affirmed the district court. See Kerr v. Hickenlooper
(Kerr I), 744 F.3d 1156(10th Cir. 2014), vacated,576 U.S. 1079
(2015). The
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Governor then appealed to the Supreme Court, which vacated the Kerr I panelâs
decision and remanded back to this court for consideration of legislative standing in
light of Arizona State Legislature v. Arizona Independent Redistricting Commission,
576 U.S. 787(2015). See Hickenlooper v. Kerr,576 U.S. 1079
(2015). On remand, this court applied Arizona and concluded that âindividual legislators may not support standing by alleging only an institutional injury.â Kerr v. Hickenlooper (Kerr II),824 F.3d 1207, 1214
(10th Cir. 2016). Because this was the sole injury the individual
legislators had alleged, the Kerr II panel reversed the district courtâs standing decision
regarding these Plaintiffs. The panel remanded for the district court to determine
whether any of the remaining Plaintiffs had standing. On remand, the Governor
moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1),
again arguing the court lacked subject-matter jurisdiction to hear the claims.
The district court was faced with the same question it had addressed years
earlier: did any of the Plaintiffs have standing to challenge TABOR? Regarding the
remaining individual Plaintiffs, the district court noted that âplaintiffs make no effort
to discuss, analyze, or even ruminate on how the elected officials, educators, and
citizens have standing[.]â Kerr v. Hickenlooper, 259 F. Supp. 3d 1178, 1183(D. Colo. 2017). Without any allegations about what injuries these Plaintiffs had suffered, the court determined these Plaintiffs lacked standing.Id. at 1184
(âThe Court should not
have to wade into that analysis when plaintiffs have voluntarily decided to stay dry on
the riverbank.â).
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But the district court found the political subdivisionsâeight school districts, a
board of county commissioners, and a recreation districtâhad Article III standing.
The Plaintiffs had adequately alleged that TABOR was causing the political
subdivisions a redressable injury in fact. Id. at 1186. Still, the district court ultimately dismissed the complaint. The court recognized that under this circuitâs prior cases, political subdivisions must clear additional hurdles when bringing a claim against their parent state.Id.
at 1186â87 (citing Branson Sch. Dist. RE-82 v. Romer,161 F.3d 619
(10th Cir. 1998); City of Hugo v. Nichols,656 F.3d 1251
(10th Cir. 2011)). Based on Branson and Hugo, the district court determined that âa political subdivision must be seeking to enforce rights afforded it in a federal statuteâ to establish standing. Kerr,259 F. Supp. 3d at 1188
. The court found no such grant of rights to the political subdivisions in this case. Without any such rights to enforce, the court found âthat the [political subdivision] plaintiffs do not have political subdivision standing to pursue this action[.]âId. at 1191
. The court granted the Governorâs 12(b)(1) motion and
dismissed the action for lack of subject-matter jurisdiction.
The Plaintiffs appealed to this court, arguing they had met the requirements for
political subdivision standing. Over a dissent, a panel of this court reversed the district
courtâs dismissal for lack of subject-matter jurisdiction and remanded to the district
court for further proceedings. See Kerr v. Polis (Kerr III), 930 F.3d 1190, 1200 (10th
Cir. 2019) (Holmes, J., dissenting). The Kerr III panel concluded dismissal was
inappropriate at this stage. To determine who the Enabling Act was intended to
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protect, the panel reasoned it would need to delve into what a Republican Form of
Government is. Id. at 1196. Because the panel regarded the jurisdictional issues as deeply intertwined with the underlying merits, it concluded the district court had prematurely dismissed the case for lack of standing. Seeid.
(â[W]e cannot decisively
determine if the political subdivision plaintiffs here are excepted from the usual bar to
political subdivisions standing because doing so would require impermissibly delving
into the merits.â).
After the Kerr III panel issued its decision, the Governor petitioned for
rehearing en banc. We granted the petition and asked the parties to specifically brief
whether political subdivision standing is a jurisdictional limitation and what political
subdivision standing requires.
II. Legal Framework
Before addressing what political subdivision standing is and where it is best
situated within our analysis, we address the threshold question of subject-matter
jurisdiction.
A. Subject-Matter Jurisdiction
âFederal courts do not wield plenary jurisdiction over every slight or suit.â
Hydro Resources, Inc. v. EPA, 608 F.3d 1131, 1144(10th Cir. 2010) (en banc). âThe Constitution gives federal courts the power to adjudicate only genuine âCasesâ and âControversies.ââ California v. Texas,141 S. Ct. 2104
, 2113 (2021) (quoting U.S.
Const. Art. III, § 2). âThat power includes the requirement that litigants have
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standing.â Id. To have standing, a plaintiff must establish three things: (1) he suffered
an âinjury in factâââan invasion of a legally protected interest which is (a) concrete
and particularized and (b) actual or imminent, not conjectural or hypotheticalâ; (2) the
injury is âfairly traceable to the challenged action of the defendantâ; and (3) it is likely
the injury will be âredressed by a favorable decision.â Lujan v. Defenders of Wildlife,
504 U.S. 555, 560â61 (1992) (internal quotation marks and citations omitted).
The Governor does not deny that the political subdivisions have established
standing. But â[b]ecause Article III standing is a jurisdictional issue, we must satisfy
ourselves that it exists here.â Felix v. City of Broomfield, 841 F.3d 848, 854(10th Cir. 2016). We agree with the district court that the political subdivisions have satisfied the constitutional standing requirements. They alleged a cognizable injury in fact: âincurring costs and expenses necessary to present matters . . . to the voters for their decision.â Aplt. App., Vol. XI at 17 (Fourth Amended Complaint); see also TransUnion LLC v. Ramirez,141 S. Ct. 2190, 2204
(2021) (â[C]ertain harms readily
qualify as concrete injuries under Article III. The most obvious are traditional tangible
harms, such as physical harms and monetary harms.â). These costs are fairly traceable
to the requirements of TABOR. And, if TABOR were struck down, the injury would
be redressed.2
2
The Governor raises another jurisdictional issue: whether the Plaintiffsâ
claims are nonjusticiable political questions. Usually, we must address jurisdictional
issues before addressing the merits of a case. But both we and the Supreme Court
have treated justiciability as an exception to that general rule. See New York v. United
States, 505 U.S. 144, 186 (1992) (â[E]ven indulging the assumption that the
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B. Political Subdivision Standing
Up to this point, the parties and courts have treated political subdivision
standing as an issue of subject-matter jurisdiction. We depart from this approach. The
limits on when political subdivisions can bring suit that we previously referred to as
âpolitical subdivision standingâ go to the merits of a caseâwhether a plaintiff has
stated a claim on which relief can be grantedânot to jurisdiction. Evaluating the
Plaintiffsâ claims through this lens, we conclude the political subdivisions have not
identified any constitutional or statutory provisions that authorize them to bring the
present cause of action. Therefore, we affirm the dismissal of the Plaintiffsâ complaint
for the alternate grounds of failure to state a claim under Rule 12(b)(6).
Below, we first describe the historical evolution of âpolitical subdivision
standingâ as a distinct consideration when subordinate governmental entities sue their
parent states (Section II.B.1), then discuss why this inquiry goes to the merits of the
Plaintiffsâ claim, rather than the courtâs jurisdiction (Section II.B.2), then articulate the
proper framework for determining whether a political subdivision has stated a viable
claim against its parent state (Section II.B.3), then address why we can modify the
Guarantee Clause provides a basis upon which a State or its subdivisions may sue to
enjoin the enforcement of a federal statute, petitioners have not made out such a claim
in these cases.â); Hanson v. Wyatt, 552 F.3d 1148, 1162 (10th Cir. 2008) (â[W]e
believe that it was appropriate for us to decide the matter on the merits without first
addressing justiciability.â).
We take the same approach here. Even if we assume the claims under the
Guarantee Clause are justiciable, we conclude the Plaintiffsâ claims fail on the merits.
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district courtâs judgment from a dismissal under Rule 12(b)(1) to a dismissal under
Rule 12(b)(6) (Section III.A), and finally explain why the Plaintiffs here fail to state a
claim under either the Constitution (Section III.B) or the Enabling Act (Section III.C).
1. History
Almost a century ago, the Supreme Court considered if and when political
subdivisions could sue their parent states. In City of Trenton v. State of New Jersey,
the city of Trenton claimed a New Jersey statute regarding distribution of water from
the Delaware River violated the Contracts Clause of the United States Constitution and
the Fourteenth Amendmentâs Due Process Clause. 262 U.S. 182, 183â84 (1923). The Supreme Court concluded the city was unable to sue New Jersey under either constitutional provision. It explained that â[a] municipality is merely a department of the state, and the state may withhold, grant or withdraw powers and privileges as it sees fit.âId. at 187
. Given this unique relationship between the city and the state, the Court reasoned that â[t]he power of the State, unrestrained by the contract clause or the Fourteenth Amendment, over the rights and property of cities held and used for âgovernmental purposesâ cannot be questioned.âId. at 188
.
A decade later, the Court took this reasoning a step further in Williams v. Mayor
and City Council of Baltimore. 289 U.S. 36 (1933). Marylandâs legislature had
adopted a statute exempting railroad property owned by the Washington, Baltimore,
and Annapolis Electric Railroad Company from county and city taxes. Baltimore
challenged the validity of the statute, claiming it violated the Fourteenth Amendmentâs
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promise of equal protection. The Court concluded the city could not bring this
constitutional claim against its parent state: âA municipal corporation, created by a
state for the better ordering of government, has no privileges or immunities under the
federal constitution which it may invoke in opposition to the will of its creator.â Id.at 40 (citing Trenton,262 U.S. 182
).
While these cases expressly disallowed political subdivisions from bringing suit
against their parent state under the Contracts Clause and the Fourteenth Amendment,
they were silent as to the viability of such claims brought under other constitutional
provisions or federal statutes. At least several circuits, including ours, have since
concluded that Trenton and Williams do not establish a complete bar on all suits by
political subdivisions against their parent states. See Hous. Auth. of Kaw Tribe of
Indians of Okla. v. City of Ponca City, 952 F.2d 1183(10th Cir. 1991) (allowing political subdivisions to sue their parent state when a federal statute and state statute conflict); Branson,161 F.3d 619
(same); see also Rogers v. Brockette,588 F.2d 1057
(5th Cir. 1979) (same); United States v. Alabama,791 F.2d 1450
, 1454â55 (11th Cir. 1986) (same); but see City of San Juan Capistrano v. Cal. Pub. Utils. Commân,937 F.3d 1278, 1280
(9th Cir. 2019) (â[W]e have consistently held that political subdivisions lack standing to challenge state law on constitutional grounds in federal court.â (citing City of S. Lake Tahoe v. Cal. Tahoe Regâl Plan. Agency,625 F.2d 231, 233
(9th Cir. 1980))).
In Kaw Tribe, Branson, and Hugo, we left open a narrow pathway for political
subdivisions to sue their parent state. In Kaw Tribe, we considered constitutional and
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statutory claims brought by a housing authority against a nearby city. We explained
that even though the housing authority was not directly suing the parent state, the suit
against another political subdivision should be evaluated the same way: âSimply
because we are now faced with a challenge brought by a state agency against a
municipality rather than a challenge by a municipality against an arm of the state or
state statute does not warrant a different outcome.â Kaw Tribe, 952 F.2d at 1189. Based on this understanding, we easily dispatched of the housing authorityâs claims under the Fourteenth Amendment: âunless expressly granted the ability by its creating state, a political subdivision cannot assert federal constitutional rights in opposition to state action.âId. at 1192
.
We then moved on to analyze whether the housing authority could sustain a suit
against another political subdivision under § 3613 of the Fair Housing Act. See 42
U.S.C. § 3613(a)(1)(A). Although the plain text of § 3613 did not authorize the housing authority to bring a suit, this court concluded the housing authority could proceed with its claim against the other political subdivision. Kaw Tribe,952 F.2d at 1195
(âWe thus do not share the cityâs belief that by not specifically including within the definition of âpersonâ the terms âgovernments, governmental agencies and political subdivisionsâ Congress meant to exclude those entities from filing suit under42 U.S.C. § 3613
.â). Looking to the Fair Housing Actâs legislative history and underlying
purpose, we concluded that it was âclear that Congress intended to summon all
available forces to vindicat[e] a policy that Congress considered to be of the highest
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priority.â Id. (internal quotation marks omitted). Thus, the housing authority was able
to overcome the cityâs motion to dismiss.
In Branson, a group of school districts challenged a state constitutional
amendment that would change the standard for managing land holdings held in a trust
for Coloradoâs public schools. The Governor argued the school districts lacked
standing as political subdivisions. Branson, 161 F.3d at 628(â[T]he defendants contend that the school district plaintiffs have no right to invoke the power of the federal courts in this case because the school districts are mere creatures of their creating state, and as such, federal doctrines of political subdivision standing prevent them from suing their parent state.â). A panel of this court disagreed. We explained that âboth Williams and Trenton stand only for the limited proposition that a municipality may not bring a constitutional challenge against its creating state when the constitutional provision that supplies the basis for the complaint was written to protect individual rights, as opposed to collective or structural rights.âId.
But neither
Williams nor Trenton addressed whether political subdivisions could otherwise bring
suit against their parent states. The school districtsâ challenge to the state action was
based on a federal statute, Coloradoâs Enabling Act. And such a statute could be
enforced through the Constitutionâs Supremacy Clause. The Enabling Act granted
more than 4.6 million acres of school lands to the state of Colorado specifically âfor
the support of common schools.â 18 Stat. at 475, § 5. We concluded the school
districts could proceed with their claim because, based on the plain language of the
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Enabling Act, they were âessentially the beneficiaries of the federal trust at issue[.]â
Id. (internal quotation marks omitted).
We subsequently addressed political subdivision standing in Hugo. There, the
city brought a Dormant Commerce Clause challenge against the state of Oklahoma.
The state sought to dismiss the cityâs claim based on political subdivision standing.
We agreed that the city lacked standing, explaining âthe Supreme Court has made clear
that the Constitution does not contemplate the rights of political subdivisions as
against their parent states[.]â Hugo, 656 F.3d at 1258.
But pointing to Branson, we explained that political subdivision standing did
not represent a categorical bar to all suits by political subdivisions against their parent
states. Id. at 1255(âUnder the doctrine of political subdivision standing, federal courts lack jurisdiction over certain controversies between political subdivisions and their parent states.â (emphasis added)). Rather, we concluded we have jurisdiction to consider such claims when âthe source of substantive rights [is] a federal statute directed at protecting political subdivisions, and the Supremacy Clause [is] invoked merely to guarantee, as a structural matter, that federal law predominates over conflicting state law.âId. at 1257
. But such claims can stand âwhen Congress has enacted statutory law specifically providing rights to municipalities.âId.
(emphasis
added).
2. Contemporary Doctrine
This was the analytical framework the district court and the Kerr III panel used
when evaluating the Plaintiffsâ complaint based on the Governorâs motion to dismiss
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under 12(b)(1). Both treated the question of political subdivision standing as part of
the threshold jurisdictional inquiry courts must make in every case. But, in light of
recent Supreme Court precedent and further consideration, we have concluded this
approach is no longer tenable.
The meaning of âstandingâ has evolved across the years. In Williams, the
Supreme Court used the language of standing when discussing the inability of
Baltimore to bring an action based on the Constitution against Maryland. See 289 U.S.
at 47(indicating the city was âwithout standing to invoke the protection of the Federal Constitutionâ). But at that time, courts did not consider standing to be a jurisdictional inquiry. Instead, â[a] party had standing or a âright to sueâ if it was correct in its claim on the merits that the statutory or constitutional provision in question protected its interests; standing was not seen as a preliminary or threshold question.â Rogers,588 F.2d at 1070
; see also William Fletcher, The Structure of Standing,98 Yale L.J. 221
,
224â28 (1988) (discussing the historical evolution of standing doctrine).
The Supreme Court has acknowledged this gradual transformation of standing
doctrine. See Lexmark International, Inc. v. Static Control Components, Inc., 572 U.S.
118(2014). In Lexmark, the Court had to determine whether a federal statute authorized the plaintiffs to bring suit against the defendant. The Court explained that not just anyone could sue based on the statute. Rather, the statute âextends only to plaintiffs whose interests fall within the zone of interest protected by the law invoked.âId. at 130
(internal quotation marks omitted). In cases decided prior to Lexmark, the
Court had treated the zone-of-interests test as a threshold jurisdictional question of
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âstatutory standingâ or âprudential standing.â Id.at 128 n.4. The Court abandoned this practice in Lexmark, concluding the zone-of-interests test went to the question of âwhether a legislatively conferred cause of action encompasses a particular plaintiffâs claim,â not whether a federal court has jurisdiction to hear the case.Id. at 127
; see alsoid.
(ââ[P]rudential standingâ is a misnomer as applied to the zone-of-interests analysis, which asks whether this particular class of persons has a right to sue under this substantive statute.â (internal quotation marks omitted; alterations incorporated)); TransUnion,141 S. Ct. at 2205
(âFor standing purposes, therefore, an important
difference exists between (i) a plaintiffâs statutory cause of action to sue a defendant
over the defendantâs violation of federal law, and (ii) a plaintiffâs suffering concrete
harm because of the defendantâs violation of federal law.â).
Following Lexmark, we now have greater clarity about which issues
anachronistically labeled as âstandingâ are actually jurisdictional and which are more
appropriately considered when evaluating whether a plaintiffâs claim is encompassed
by a given cause of action. We believe the âstandingâ in âpolitical subdivision
standingâ is a misnomer. See Rogers, 588 F.2d at 1068(Trenton and its progeny âdo not deal with âstanding,â in the sense in which we use the term, at all.â). âIn speaking of âstanding,â cases in the . . . Trenton line meant only that, on the merits, the municipality had no rights under the particular constitutional provisions it invoked.âId. at 1070
. This is not a jurisdictional inquiry. Rather, like the zone-of-interests test
at issue in Lexmark, this inquiry is a way of discerning whether political subdivisions
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have alleged a cause of action against their parent state in a given case.3 We now hold
that what we formerly referred to as political subdivision standing is an inquiry going
to the merits of the case, not the courtâs jurisdiction. Under this inquiry, we no longer
ask whether a political subdivision has standing. We ask whether the political
subdivision has a cause of action.
3. Suits Brought by Political Subdivisions Against Their Parent States
We adopt the two-step process from Hugo to analyze whether a political
subdivision has a cause of action against its parent state.4 First, we must determine
whether the political subdivisionâs cause of action rests on a substantive constitutional
provision; if so, the claim cannot proceed.5 See Hugo, 656 F.3d at 1258 (â[T]he
3
In supplemental briefing, both parties endorsed this understanding of the
inquiry.
4
While the reason for inquiring into what law authorizes a political subdivision
to sue its parent state has changedâaddressing whether the plaintiff has a cause of
action rather than whether we have jurisdictionâthe actual substance of the inquiry
has not. Hugo, though addressed to subject-matter jurisdiction, correctly captured the
essential question that needs answering in these cases: does the political subdivision
have a cause of action?
5
According to Judge Briscoeâs Dissent, we ought to limit the rule to those
constitutional provisions expressly ruled on by the Supreme Court and this court.
Judge Briscoeâs Dissent argues that a general rule prohibiting suits by political
subdivisions against their parent states based on substantive constitutional provisions
goes too far. In adopting the rule stated by this court in Hugo, we are not indulging
unreasoned dicta. The Supreme Court has explained on multiple occasions why
substantive constitutional claims by a political subdivision against its parent state
cannot stand. See, e.g., Hunter v. City of Pittsburgh, 207 U.S. 161, 179(1907) (â[T]he state is supreme, and its legislative body, conforming its action to the state Constitution, may do as it will, unrestrained by any provision of the Constitution of the United States.â); Trenton,262 U.S. at 187
(âA municipality is merely a
department of the state, and the state may withhold, grant or withdraw powers and
privileges as it sees fit. However great or small its sphere of action, it remains the
creature of the state exercising and holding powers and privileges subject to the
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Supreme Court has made clear that the Constitution does not contemplate the rights of
political subdivisions as against their parent states[.]â); see also Trustees of Dartmouth
College v. Woodward, 17 U.S. (4 Wheat.) 518, 629(1819) (Marshall, J.) (âThat the framers of the constitution did not intend to restrain the states in the regulation of their civil institutions, adopted for internal government, and that the instrument they have given us, is not to be so construed, may be admitted.â); Ysursa v. Pocatello Educ. Assân,555 U.S. 353, 363
(2009) (â[A] political subdivision . . . is a subordinate unit of
government . . . âcreated by a state for the better ordering of government, [and] has no
privileges or immunities under the federal constitution which it may invoke in
opposition to the will of its creator.ââ (quoting Williams, 389 U.S. at 40)).6
sovereign will.â).
In each of these cases the Supreme Court was faced with a particular
constitutional provision. Hunter, 207 U.S. 161(Contracts Clause); Trenton,262 U.S. 182
(Fourteenth Amendment and Contracts Clause); Williams,289 U.S. 36
(Fourteenth Amendment). But the Supreme Courtâs broader pronouncements that political subdivisions cannot bring constitutional claims against their parent states were not drive-by dicta. They reflected the reasoned consideration of the Court. We are far from alone in reaching this conclusion. See San Juan Capistrano,937 F.3d at 1280
(â[W]e have consistently held that political subdivisions lack standing to challenge state law on constitutional grounds in federal court.â); Greater Heights Academy v. Zelman,522 F.3d 678, 680
(6th Cir. 2008) (âIt is well established that political subdivisions cannot sue the state of which they are part under the United States Constitution.â); City of New York v. Richardson,473 F.2d 923, 929
(2d Cir.
1973) (explaining that Williamsâ bar on constitutional claims by political subdivisions
against parent states âremains controlling authority when the challenged statute is the
work of a State legislatureâ).
6
The Plaintiffs rely extensively on the distinction between âindividualâ and
âstructural/collectiveâ rights discussed in Branson. But the Plaintiffs read more into
this language than it is worth. The only distinction the Branson court intended to
make by using these terms was between claims based on substantive provisions of the
Constitution and claims based on a federal statute. See Hugo, 656 F.3d at 1257
(Where claims by a political subdivision have proceeded âthe Supremacy Clause was
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Second, if the political subdivision brings its suit under a federal statute, we
must determine whether Congress specifically intended to create a cause of action for
political subdivisions. A federal statute authorizes a political subdivision to sue its
parent state if the statute is âdirected at protecting political subdivisions[.]â Hugo, 656
F.3d at 1257.
The Plaintiffs disagree with this formulation of the test for determining whether
political subdivisions have a cause of action. Instead, they propose we use Lexmarkâs
zone-of-interests test to determine whether a political subdivision has a cause of action
under a federal statute. Under the zone-of-interests test, courts must determine
whether a statute actually provides the plaintiff with a cause of action. In making this
determination, courts are to âapply traditional principles of statutory interpretationâ âto
determine the meaning of the congressionally enacted provision creating a cause of
action.â Lexmark, 572 U.S. at 128. This inquiry is not âmeant to be especially demanding,â and âthe benefit of any doubt goes to the plaintiff.â Match-E-Be-Nash- She-Wish Band of Pottawatomi Indians v. Patchak,567 U.S. 209, 225
(2012) (internal
quotation marks omitted).
We decline the Plaintiffsâ invitation to adopt the zone-of-interests test.
Although this test may be appropriate in many cases involving statutorily granted
invoked merely to guarantee, as a structural matter, that federal law predominates
over conflicting state law. This understanding of the Supremacy Clause informs the
use of the words âstructuralâ and âcollectiveâ to describe the rights political
subdivisions may vindicate in federal court against their parent states.â (emphasis
added)). The mere fact that a claim based on the guarantee of a Republican Form of
Government can be construed as âstructuralâ does not mean the political subdivisions
have a constitutional cause of action outside of the Supremacy Clause.
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causes of action, we cannot simply transpose it onto claims brought by political
subdivisions against their parent states. To be sure, Trenton and Williams do not
categorically bar political subdivisions from suing their parent state in all instances.
But the federalism concerns underlying these decisions have continuing relevance for
determining whether a political subdivision has a cause of action against its parent
state.
Political subdivisions are not just like any other plaintiff, particularly when they
sue their parent states. Political subdivisions have a unique relationship with their
parent states and courts should be hesitant to infer that Congress intended to intrude on
internal state matters. Such subordinate government entities are created by states for
their own administrative convenience. See Trenton, 262 U.S. at 185â86. Our inquiry
must reflect this reality and protect âthe substantive principle that the Constitution
does not interfere with a stateâs internal political organization.â Rogers, 588 F.2d at
1070. The Plaintiffsâ proposed zone-of-interests test is not tailored to the particular concerns involved in cases where political subdivisions sue their parent states. As described above, that test is ânot meant to be especially demandingâ and âthe benefit of any doubt goes to the plaintiff.â Patchak,567 U.S. at 225
. Adopting this test for
claims, such as the ones at issue here, could allow political subdivisions to interfere
with the internal organization of their parent states even if Congress never intended
such an outcome.
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When addressing such sensitive areas of federalism in other contexts, the
Supreme Court has refrained from intruding upon statesâ powers apart from clear
congressional language. Will v. Mich. Depât of State Police, 491 U.S. 58, 65(1989) (âCongress should make its intention clear and manifest if it intends to pre-empt the historic powers of the States[.]â) (internal quotation marks omitted); Gregory v. Ashcroft,501 U.S. 452, 461
(1991) (âThis plain statement rule is nothing more than an acknowledgment that the States retain substantial sovereign powers under our constitutional scheme, powers with which Congress does not readily interfere.â); United States v. Bass,404 U.S. 336, 349
(âIn traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision.â). And the Supreme Court has imposed this same type of plain statement rule when it appears federal action would disrupt the relationship between a state and its municipal subdivisions. See Nixon v. Mo. Municipal League,541 U.S. 125, 140
(2004) (explaining âthat federal legislation
threatening to trench on the Statesâ arrangements for conducting their own
governments should be treated with great skepticism, and read in a way that preserves
a Stateâs chosen disposition of its own power, in the absence of [a] plain statementâ).
The two-step process from Hugo we now adopt addresses these concerns and is
in line with this Supreme Court precedent. By requiring that a statute be directed at
protecting subdivisions at step two, we ensure Congress has specifically weighed the
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federalism implications of a given statute and determined political subdivisions have a
particular interest in enforcing the law.7 See also Hugo, 656 F.3d at 1257 (â[C]ourts
have allowed such suits only when Congress has enacted statutory law specifically
providing rights to municipalities.â (emphasis added)). It is not too much to expect
Congress to speak clearly before allowing a political subdivision to challenge the
internal workings of its parent state. Our articulation of this test provides a path
forward for political subdivisions to sue their parent states when Congress has clearly
authorized such action while also safeguarding statesâ internal structures.8
7
The Plaintiffs suggest Clinton v. New York, 524 U.S. 417 (1998), undermines
our requirement that a federal statute be directed at protecting political subdivisions to
bring a suit against their parent state. In Clinton, the plaintiffs were able to bring a
challenge based on an alleged violation of the Constitutionâs Presentment Clause.
The Plaintiffs here point out that the Clinton plaintiffs could proceed with their case
despite not being intended beneficiaries of that constitutional provision.
Clinton is distinguishable for several reasons. First, it did not deal with a suit
by a political subdivision against its parent state as we face here. Second, the
plaintiffsâ cause of action in Clinton was not inferred from the Presentment Clause.
The Line Item Veto Act at issue in that case explicitly created a cause of action
allowing citizens to challenge the Act. It stated that â[a]ny Member of Congress or
any individual adversely affected by [this law] . . . may bring an action . . . for
declaratory judgment and injunctive relief on the ground that any provision of this
part violates the Constitution.â 2 U.S.C. § 692(a)(1). Thus, Clinton has no bearing on
the case before us now.
8
In adopting this two-step test from Hugo, we take no position on whether at
the second step of the test we may look only at the text of the relevant federal statute
or whether we can look to extratextual sources to discern Congressâs intent. The
Supreme Court itself seems to have avoided taking a clear position on this in the
plain-statement context. Compare Will, 491 U.S. at 65(explaining Congress must make its intent âunmistakably clear in the language of the statuteâ), withid. at 69
(looking to legislative history to determine Congressâs intent).
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III. Application
Having articulated the proper manner for assessing whether a political
subdivision has stated a claim against its parent state, we apply it to the present case.
In doing so, we conclude the Plaintiffs have failed to state a claim on which relief can
be granted.
A. Standard of Review
The district court and the panel originally evaluated the political subdivisionsâ
ability to sue their parent state as a jurisdictional issue pursuant to the Governorâs
motion to dismiss under Rule 12(b)(1). As we have described above, we hold here that
the limit on claims brought by political subdivisions has nothing to do with our
jurisdiction, but rather goes to the merits of the Plaintiffsâ claims. But in analyzing the
merits of the Plaintiffsâ claims, our inquiry is the same as the district courtâs when it
evaluated jurisdiction below: Who has the ability to bring a claim under the Guarantee
Clause and the Enabling Act? And, as explained above, our approach to analyzing that
inquiry is the same. In supplemental briefing for the en banc court, the Governor
argued that because the political subdivision limitation goes to the merits we should
Nor do we need to take a position on this issue. Here, the Plaintiffs had every
opportunity to present arguments based both upon text and legislative history. And,
based on Kaw Tribe, they knew that legislative history could potentially be used to
determine whether Congress provided political subdivisions with a cause of action
against their parent stateâregardless of whether the requirement is characterized as
jurisdictional or addressing the merits. See 952 F.3d 1195. Yet throughout all of the
Plaintiffsâ briefing both before the district court, a panel of this court, and now the en
banc court they have failed to present any pertinent legislative history for us to
consider when interpreting the Colorado Enabling Act.
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treat the motion to dismiss under Rule 12(b)(6) rather than Rule 12(b)(1). The
Governor proceeded to address the merits and why the Plaintiffs have failed to state a
claim. We agree. Accordingly, we now consider the Governorâs motion to dismiss
under the rubric of Rule 12(b)(6) for failure to state a claim, as an alternative basis to
affirm.
Thus, we apply Rule 12(b)(6)âs familiar standard for assessing whether a
plaintiff has stated a claim upon which relief can be granted. To overcome a motion to
dismiss under Rule 12(b)(6), the plaintiffâs âcomplaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.â Ashcroft
v. Iqbal, 556 U.S. 662, 678(2009) (citations omitted). In assessing plausibility, we take all the plaintiffâs well-pleaded facts as true.Id.
But â[a] pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.âId.
Despite agreeing that our political subdivision test addresses the merits rather
than jurisdiction, the Plaintiffs and Judge Briscoeâs Dissent caution us against
undertaking any assessment of the merits at this point. They insist we must allow the
case to proceed further to determine what a Republican Form of Government is so we
can appropriately determine who it is intended to protect.
Although this argument may have had some superficial appeal when
determining whether to resolve this issue as a jurisdictional matter under Rule
12(b)(1), it is now unavailing. See Holt v. United States, 46 F.3d 1000, 1003 (10th Cir.
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1995) (â[A] court is required to convert a Rule 12(b)(1) motion to dismiss into a Rule
12(b)(6) motion or a Rule 56 summary judgment motion when resolution of the
jurisdictional question is intertwined with the merits of the case.â). But under Rule
12(b)(6), we consider the legal sufficiency of the Plaintiffsâ claims, which necessarily
entails evaluating the merits of the complaint now.9 Merely because the Plaintiffs
insist their claim may be stronger at some future point does not relieve them of the
burden of satisfying Rule 12(b)(6).
Judge Briscoeâs Dissent suggests that by now applying our political subdivision
test on appeal we âusurp the district court and become the first court to consider this
case on the merits.â Dissent at 24. We do no such thing. Recall, the district court
performed the correct analysis from Hugoâit simply did so under the wrong
procedural heading. As was the case in Morrison, 561 U.S. at 254, nothing in the
district courtâs analysis turned on its mistake of treating this inquiry as jurisdictional.
Neither the Plaintiffs nor Judge Briscoeâs Dissent have indicated howâunder our two-
9
The Plaintiffs contend the suit should be able to proceed because âthe merits
phase of this case can add [value] in determining both what a republican form of
government consists of and who may claim its benefits.â Respât Suppl. Answer Br. at
9. But the Plaintiffs have given us no indication of what additional information might
become available and why that information was not available to them in crafting their
complaint. We see no reason to remand for further fact-finding or let the case proceed
when the Plaintiffs have been given every opportunity to advance the requisite claims
to establish a cause of action. They have offered only vague legal conclusions about
the guarantee of a Republican Form of Government being for political subdivisions.
We will not credit these. See Iqbal, 556 U.S. at 678 (â[T]he tenet that a court must
accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions.â).
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step test for analyzing whether a political subdivision has a cause of action against its
parent stateâremanding for the Plaintiffs to further develop the record would make
any difference here. We explain below that neither the Guarantee Clause nor the
Enabling Act contemplate creating a cause of action for political subdivisions. No
amount of creative pleading on remand can change this.10
Thus, we affirm the dismissal on the basis of Plaintiffsâ failure to state a claim.
B. The Guarantee Clause
In the complaint, the Plaintiffs allege the Guarantee Clause protects a
Republican Form of Government. And they also allege that TABOR violates this
guarantee âfor all subordinate levels of government in the State.â Aplt. App., Vol. XI
at 1447. But the complaint is entirely silent about why the political subdivisions are
protected by this constitutional guarantee.
As we explained in Hugo, political subdivisions cannot rely on a substantive
provision of the Constitution to sustain a claim against their parent state. 656 F.3d at
1258 (â[T]he Supreme Court has made clear that the Constitution does not contemplate
10
In their reply brief before the panel, the Plaintiffs offered that â[i]n their case
on the merits, [they] will offer extensive historical evidence of and legal proof for the
proper meaning of the Guarantee Clause and âRepublican Form of Governmentâ[.]â
Aplt. Reply Br. at 25, n.15. But Plaintiffs fail to explain why they have neglected to
bring such historical information now, when they knew it could be pertinent to their
ability to proceed. See Kaw Tribe, 952 F.3d at 1195. And they have given us no
indication of how such historical material could help their case here.
For instance, in their Fourth Amended Complaint, the Plaintiffs directed the
district court to excerpts from The Federalist Papers in an attempt to overcome the
Constitutionâs plain language. See Aplt. App. 1422â23 (citing The Federalist Nos.
10, 39, 51, 57). But we have perused The Federalist Papers ourselves and are
convinced Mr. Madison has provided no safe harbor for political subdivisions.
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the rights of political subdivisions against their parent states[.]â). By âsubstantive,â
this court in Hugo simply meant constitutional provisions that âprovide substantive
restraints on state action[.]â Id. at 1262. Article IV, Section 4 of the United States
Constitution states, â[t]he United States shall guarantee to every State in this Union a
Republican Form of Government.â On their own reading of the Constitution, the
Plaintiffs regard the Guarantee Clause as just such a substantive provision. Respât
Suppl. Answer Br. at 15 (â[T]he relevant constitutional requirement, the guarantee of a
Republican Form of Government, . . . does constrain the plenary power of the state to
manipulate the affairs of its municipal corporations.â (internal quotation marks
omitted; alterations incorporated) (emphasis added)). But the Plaintiffs cannot rely on
such a provision for their cause of action. See Ysursa, 555 U.S. at 363 (â[A] political
subdivision . . . has no privileges or immunities under the federal constitution which it
may invoke in opposition to the will of its creator.â (internal quotation marks
omitted)). Based both on precedent and the textâs clear language, the Guarantee
Clause does not confer a right on political subdivisions that they can enforce against
their parent states. The Plaintiffs have said nothing to convince us otherwise.11
11
Judge Briscoeâs Dissent contends we need not even reach this argument
because the Plaintiffs have waived their constitutional claim under the Guarantee
Clause. But the Plaintiffs did not waive this claim. They clearly invoked the
Guarantee Clause in the first page of their supplemental answer brief: âPlaintiffs have
sued to enforce the guarantees of the a Republican Form of Government afforded to
them under the Guarantee Clause . . . and a similar provision in the Colorado
Statehood Enabling Act.â Respât Suppl. Answer Br. at 1 (emphasis added; internal
citations omitted). And they went on to invoke the Guarantee Clause repeatedly
throughout their briefing and relied on it as to authorize their suit against the state.
See, e.g., id. at 8 (â[T]he Guarantee Clause provide[s] for a republican form of
government that entails a structural and interdependent relationship between state
government and political subdivisions, both with the inherent authority to raise and
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Our statement from Hugo is as true today as it was a decade ago: âThe parties
have not identified, and this court has not found, 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.â 656 F.3d at 1257; see also Rogers,588 F.2d at 1069
(â[T]he entire Constitution does not interfere in a stateâs internal organization of its political functions.â (citing Trustees of Dartmouth College,17 U.S. (4 Wheat.) 518
)).12
C. The Enabling Act
Faced with near-certain failure on their Guarantee Clause claim, the Plaintiffs
place most of their eggs in the Enabling Act basket on appeal. They insist they âhave
pled sufficient factual allegations in support of their claim,â including (1) âthat
spend revenue.â); see also id. at 12, 15. We can and must address this claim.
12
The Plaintiffs also suggest Gomillion v. Lightfoot, 364 U.S. 339 (1960),
opened up a door for constitutional challenges by political subdivisions against their
parent states. In Gomillion, the plaintiffs were Black citizens of Tuskegee, Alabama.
These citizens challenged a state statute that re-drew the cityâs boundaries. Relying
on the Fourteenth and Fifteenth Amendments, the plaintiffs alleged the state law was
passed to disenfranchise Black voters. The Court allowed the case to proceed past a
motion to dismiss, explaining that â[l]egislative control of municipalities, no less than
other state power, lies within the scope of relevant limitations imposed by the United
States Constitutionâânamely, the Equal Protection Clauseâs guarantee against race
discrimination in political districting. Gomillion, 364 U.S. at 344â45.
The Courtâs decision in Gomillion does not conflict with step one of our
political subdivision test. Unlike the present challenge to TABOR, Gomillion did
ânot involve a suit by a municipality against its parent state.â Hugo, 656 F.3d at
1259. The Gomillion Court never had to address whether a political subdivision could sue its parent state under the Constitution. Instead, âGomillion stands for the commonsense, limited proposition that a stateâs actions vis-a-vis municipalities may impact the rights of individuals living in the communities and that those impacted individuals are not denied the protections of the Constitution merely because the municipality itself is not contemplated by the constitutional provisions at issue.âId.
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TABOR undermines a republican form of government in the state,â (2) âthat the
Colorado constitution adopted pursuant to the Enabling Act embodied an
interdependent structure between the state and the political subdivisions,â and (3) âthat
the Enabling Act recognized the existence of both counties and public school districts
prior to statehood.â Respât Suppl. Answer Br. at 6.
But looking inside, that basket is not very full. To be sure, we take all of the
Plaintiffsâ well-pleaded facts as true at this stage. But this standard of review does not
change the underlying text of the Enabling Act. And this text is of no help to the
Plaintiffs. It simply states that Coloradoâs âconstitution shall be republican in form.â
18 Stat. 474, § 4. The Act does not specify for whom the protection is intended or give
any indication that a republican government is a right intrinsic to being a political
subdivision.
Undeterred by the statuteâs complete silence, the Plaintiffs make a few tenuous
attempts at explaining why this guarantee in the Enabling Act protects political
subdivisions. For example, they point to language in the Enabling Act that identifies
common schools as the beneficiaries of a land trust. Id. at §§ 7, 14. But the Plaintiffs
provide no indication of how these provisions of the Enabling Act create a cause of
action for political subdivisions based on the Actâs separate guarantee of a
âconstitution republican in form.â Id. at § 4.
Recognizing that any path forward based on the actual language of the Enabling
Act is blocked, the Plaintiffs attempt to overcome the Governorâs motion to dismiss by
charting a course around the Actâs plain language. In their supplemental briefing, the
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Plaintiffs raise a new argument: because the political subdivisions existed prior to
statehood, the Enabling Actâs promise of a constitution republican in form is directed
at protecting them. They reason that prior to passage of the Enabling Act, the
âterritorial residents had the right to govern themselves through local government
institutions, and these rights were preserved under the subsequent state constitution.â
Respât Suppl. Answer Br. at 11. Colorado did not create the subdivisions, so the
Enabling Act did not deprive the subdivisions of the republican governance they
enjoyed prior to statehood. Rather, the Act recognized an entrenched political reality.
The Plaintiffs contend the Enabling Actâs language promising a constitution republican
in form directly protects political subdivisions that pre-dated the state because they
were the very institutions on which the state was formed.
This novel theory regarding why the Enabling Act provides the political
subdivisions with a cause of action does not get the Plaintiffs past Rule 12(b)(6). The
Plaintiffs direct us to no cases that support a cause of action under this theoryâthat
political subdivisions that pre-existed their parent state had their rights, forms, and
structures implicitly codified by statehood. Moreover, the Plaintiffsâ theory assumes
the conclusion: that the Enabling Actâs guarantee of a constitution republican in form
was intended to protect the political subdivisions because they were already a part of
the stateâs underlying form of government. But neither Congress nor Colorado had to
maintain these political subdivisions in their pre-statehood form. The continued
existence and function of these entities post-statehood were simply a matter of
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administrative convenience for the state. The fact remains that Congress was silent
about whether it intended to protect the political subdivisions through the Enabling
Actâs promise of a âconstitution republican in form.â 18 Stat. 474, § 4. The Plaintiffs
ask us to infer a novel cause of action based on speculative historical exigencies. We
decline to do so.
Looking at the Enabling Actâs language, we conclude the Plaintiffs cannot state
a claim under the Actâs promise of a republican constitution. Neither the Enabling
Actâs text nor structure supports the political subdivisionsâ arguments. The clause
promising a constitution republican in form has no clear beneficiary. And aside from
the aforementioned references to common schools in other sections of the Enabling
Act, references to other subordinate political entities are nowhere to be found. At
most, the Enabling Act specifies that âthe constitution and State government shall be
formed for the people of said Territory of Colorado.â 18 Stat. 474, § 5 (emphasis added). Just because the Plaintiffs believe that they should be included in the scope of the promise of a republican government does not make it so. As we required in Hugo, and restate here, the relevant statute must be âdirected at protecting political subdivisions[.]â656 F.3d at 1257
. No such direct language exists here.
* * *
The Plaintiffs have failed to identify any source providing them with a cause of
action to challenge TABOR. Without a constitutional or statutory provision on which
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to hang their hat, the Plaintiffs cannot state a claim on which relief can be granted.
Thus, we affirm the dismissal of the Plaintiffsâ complaint under Rule 12(b)(6).
IV. Conclusion
We AFFIRM the district courtâs dismissal of the Plaintiffsâ claims. While the
district court erred in evaluating the political subdivisionsâ claims as a jurisdictional
matter under Rule 12(b)(1), we agree with the substance of its reasoning. Because the
limitations on suits that political subdivisions can bring against their parent states goes
to the merits, we consider the Governorâs Rule 12(b)(1) motion as a Rule 12(b)(6)
motion for failure to state a claim. In doing so, we find that the Constitutionâs
Guarantee Clause does not supply the political subdivisions with a cause of action.
Likewise, because the Enabling Act is not directed at protecting the political
subdivisions, the Plaintiffs cannot overcome the Governorâs motion to dismiss. Given
that neither the Constitution nor the Enabling Act authorize suit by the political
subdivisions here, we affirm the district courtâs order dismissing these claims without
prejudice.
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17-1192, Kerr v. Polis, TYMKOVICH, Chief Judge, concurring. Hartz and Eid,
Circuit Judges, joining in the concurrence. Holmes, Circuit Judge, joining as to Part II
only.
I agree with the majorityâs decision to affirm the order below and with its
analysis. But I would also dismiss the political subdivision claims as nonjusticiable
political questions. Further, because the majority disposition reaches the substance of
the claims and thus has the effect of preventing Plaintiffs from refiling their case, I
would label it a dismissal with prejudice.
I. Plaintiffsâ claims are nonjusticiable political questions.
Though I agree that the Plaintiffs have failed to state a claim under Rule
12(b)(6), this case should be even more open and shut. The Plaintiffsâ claims based on
the Guarantee Clause and the Enabling Act are nonjusticiable political questions
beyond the purview of this court and should have been dismissed at the outset.
Supreme Court precedent requires this conclusion. Pacific States Telephone &
Telegraph Co. v. Oregon, 223 U.S. 118(1912), precludes a merits review of the Plaintiffsâ Guarantee Clause claim, and Baker v. Carr,369 U.S. 186
(1962), precludes
review of their Enabling Act claim.
Despite clear precedent to the contrary, an earlier panel of this court deemed the
Plaintiffsâ claims to be justiciable. See Kerr v. Hickenlooper (Kerr I), 744 F.3d 1156(10th Cir. 2014), vacated on other grounds,576 U.S. 1079
(2015). But in doing so, the panel misread Pacific States and misapplied Baker. Now that we are considering the adequacy of the Plaintiffsâ claims en banc, the Kerr I panelâs holding regarding justiciability is ripe for reexamination. âBecause the question of justiciability implicates this courtâs jurisdiction, even if neither party, nor the district court, raised Appellate Case: 17-1192 Document: 010110617974 Date Filed: 12/13/2021 Page: 37 the issue, it is our duty to undertake an independent examination to determine whether the dispute, as framed by the parties, presents a justiciable controversy.â Morgan v. McCotter,365 F.3d 882, 887
(10th Cir. 2004).
A. Claims Brought Under the Guarantee Clause are Nonjusticiable
Federal courts lack jurisdiction to hear cases that involve a political question. A
case involves a political question âwhere there is âa textually demonstrable
constitutional commitment of the issue to a coordinate political department; or a lack
of judicially discoverable and manageable standards for resolving it.ââ Zivotofsky ex
rel. Zivotofsky v. Clinton, 566 U.S. 189, 195(2012) (quoting Nixon v. United States,506 U.S. 224, 228
(1993)). Courts lack jurisdiction to consider claims premised on such political questions. See Rucho v. Common Cause,139 S. Ct. 2484, 2494
(2019).
The case before us requires us to answer whether the promise of a Republican Form of
Government in the Guarantee Clause is such a political question.
In answering this question, we are not writing on a clean slate.
First, in Luther v. Borden, 48 U.S. (7 How.) 1, 42 (1849), the Supreme Court
made clear that the Guarantee Clause falls within Congressâs purview, not the
judiciaryâs. The Luther Court explained that
under [the Guarantee Clause] it rests with Congress to
decide what government is the established one in a State.
For as the United States guarantees to each State a
republican government, Congress must necessarily decide
what government is established in the State before it can
determine whether it is republican or not. And when the
senators and representatives of a State are admitted into the
councils of the Union, the authority of the government
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under which they are appointed, as well as its republican
character, is recognized by the proper constitutional
authority. And its decision is binding on every other
department of the government, and could not be questioned
in a judicial tribunal.
48 U.S. (7 How.) at 42 (emphasis added).
Decades later, the Supreme Court again came to the same conclusionâclaims
brought under the Guarantee Clause are nonjusticiable political questions. Pacific
States, 223 U.S. at 150â51. In Pacific States, the Supreme Court considered a
taxpayerâs challenge to an Oregon tax law on the ground that it was adopted by ballot
initiative in violation of the Guarantee Clause. Relying on Luther, the Court
concluded that challenges based on the Guarantee Clause present nonjusticiable
political questions. In doing so, the Court declined to define the term Republican
Form of Government, instead concluding that definition was of a political character
and, hence, beyond the jurisdiction of the courts. Id. at 133(â[T]hat question has long since been determined by this court conformably to the practise of the Government from the beginning to be political in character, and therefore not cognizable by the judicial power, but solely committed by the Constitution to the judgment of Congress.â); see also Ryan C. Williams, The âGuaranteeâ Clause,132 Harv. L. Rev. 602
, 688 (2018) (âThe modern understanding of the political question doctrine as a
barrier to all Guarantee Clause claims began to crystallize with the Courtâs 1912
decision in Pacific States.â). Pacific States binds us here.
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Despite the Supreme Courtâs clear rejection of claims brought under the
Guarantee Clause in Pacific States, the Kerr I panel concluded the case did not dictate
the outcome for the Plaintiffsâ challenge of TABOR. The panel distinguished the
Plaintiffsâ case from Pacific States. According to the panel, the plaintiffs in Pacific
States presented a âmuch broader legal challengeâ because the case involved a
âwholesale attack[] on the validity of a stateâs government rather than, as before us [in
Kerr I], a challenge to a single provision of a state constitution.â Kerr I, 744 F.3d at
1173. Because the Plaintiffs claim that TABORânot the entire structure of
Coloradoâs state governmentâviolates the Guarantee Clause, the panel concluded
Pacific States did not control.
But this is a misreading of Pacific States. The challenge in that case was to a
plebiscite taxâor, read most broadly, to a 1902 amendment to the Oregon Constitution
allowing for popular ballot initiatives and referenda, such as the plebiscite tax. Chief
Justice Edward White, writing for the majority, proclaimed that the taxpayerâs position
was, in essence, a claim that adoption of the initiative and referendum âcaus[ed] the
State to cease to be a government republican in formâ and âdestroyed all government
republican in form in Oregon.â Pacific States, 223 U.S. 118, 140â41; see also Hans A. Linde, Who is Responsible for Republican Government?,65 U. Colo. L. Rev. 709
, 714
(1994) (Chief Justice White âassumed that a state either was republican as a whole, or
it would be no proper state at all, and all its acts would be illegal . . . . Whiteâs opinion
seemed blind to the obvious idea that when a state adopts one nonrepublican feature,
this feature alone might be invalid.â).
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In Pacific States, âall the petitioners asked the Court to determine was whether
the constitutional initiative was sufficiently republican.â George Theodore Phillips,
Thwarting Thrasymachus: A New Constitutional Paradigm for Direct Democracy &
Protecting Minority Rights, 106 Geo. L.J. 1161, 1177 (2018). This is no broader than the legal challenge raised here. Under the logic of Pacific States, the Plaintiffsâ claim that TABOR is inconsistent with the Guarantee Clause equates to a claim that TABOR renders the Colorado government non-republican in form. And under Pacific States, that claim presents a political question, not within the reach of the judicial power. See223 U.S. at 150
(The âessentially political nature [of this case] is at once made
manifest by understanding that the assault which the contention here advanced makes
is not on the tax as a tax, but on the state as a state.â).
In the wake of Pacific States, the Supreme Court has uniformly dismissed
Guarantee Clause claims as nonjusticiable. The same term Pacific States was decided,
the Court considered a Guarantee Clause challenge to two other amendments to the
Oregon Constitution that âauthorized municipalities to . . . carry[] into effect the
initiative and referendum powers reserved by the amendmentâ at issue in Pacific
States. See Kiernan v. City of Portland, 223 U.S. 151, 160(1912). The Court concluded these amendments, too, were nonjusticiable under the Guarantee Clause.Id. at 164
. A year later, the Court heard a Guarantee Clause challenge to Indianaâs constitutional amendment procedure, which allowed constitutional changes to be approved by ballot initiative. Marshall v. Dye,231 U.S. 250, 255
(1913). Relying on
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Pacific States, the Court dismissed the case because it âpresent[ed] no justiciable
controversy[.]â Id. at 256â57.
By 1915, the notion that the Guarantee Clause was nonjusticiable was so clearly
established that the Court summarily dismissed such claims: âThe attempt to invoke
[the Guarantee Clause] . . . is obviously futile[.]â OâNeill v. Leamer, 239 U.S. 244,
248(1915) (citing Pacific States,223 U.S. 118
). In 1916, the Court considered another plebiscite challengeâthere, to an amendment to the Ohio constitutionâafter a state reapportionment statute had been invalidated by ballot referendum. State of Ohio ex rel. Davis v. Hildebrandt,241 U.S. 565, 566
(1916). Unsurprisingly, the Court concluded that the argument there âdisregard[ed] the settled rule that the question of whether the [Guarantee Clause] of the Constitution has been disregarded presents no justiciable controversy, but involves the exercise by Congress of the authority vested in it by the Constitution.âId.
at 569 (citing Pacific States,223 U.S. 118
).1
1
This practice has continued to the present day; indeed, since 1912, the Court
has never found a Guarantee Clause claim to be justiciable. See, e.g., Mountain
Timber Co. v. State of Washington, 243 U.S. 219, 234(1917) (âIt is urged that the law violates § 4 of Article IV of the Constitution of the United States, guaranteeing to every State in the Union a republican form of government. As has been decided repeatedly, the question whether this [guarantee] has been violated is not a judicial but a political question, committed to Congress, and not to the courts.â); Highland Farms Dairy v. Agnew,300 U.S. 608, 612
(1937) (â[E]nforcement of that guarantee, according to the settled doctrine is for Congress, not the courts.â); Colegrove v. Green,328 U.S. 549, 556
(1946) (âViolation of the great guaranty of a republican form of government in States cannot be challenged in the courts.â); City of Rome v. United States,446 U.S. 156, 182
(1980) (âWe do not reach the merits of the appellantsâ argument that the Act violates the Guarantee Clause, Art. IV, § 4, since that issue is not justiciable.â); Rogers v. Lodge,458 U.S. 613, 634
(1982) (âViolation
of the great guaranty of a republican form of government in States cannot be
challenged in the courts. The Constitution has left the performance of many duties in
our governmental scheme to depend on the fidelity of the executive and legislative
action and, ultimately, on the vigilance of the people in exercising their political
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Despite this longstanding practice of treating Guarantee Clause claims as
nonjusticiable, the Supreme Court later indicated in New York v. United States, 505
U.S. 144, 185(1992), that âperhaps not all claims under the Guarantee Clause present nonjusticiable political questions.â Still, the Court in New York declined to resolve the âdifficult questionâ of what claims might be justiciable under the Guarantee Clause.Id.
It dodged the issue, concluding that, âeven indulging the assumption that the Guarantee Clause provides a basis upon which a State or its subdivisions may sue to enjoin the enforcement of a federal statute, petitioners have not made out such a claim in these cases.âId. at 186
.2
rights.â).
2
Following the Courtâs decision in New York, other circuit courts have
disposed of Guarantee Clause claims on both non-justiciability grounds and,
sometimes, on the merits after assuming justiciability. See, e.g., Deer Park Indep.
School Dist. v. Harris Cnty. Appraisal Dist., 132 F.3d 1095, 1099(5th Cir. 1998) (âThis [Guarantee Clause] claim is not only incorrect, it is absurd. . . . [T]he Supreme Court has held that challenges to Congressional action under the Guarantee Clause are not justiciable.â); Travis v. Reno,163 F.3d 1000, 1007
(7th Cir. 1998) (âEven if we were to put to one side the Supreme Courtâs holding that claims under the guarantee clause are not justiciable when raised by private persons and perhaps even when raised by states, we would see little merit to the contention.â (internal citations omitted)); Murtishaw v. Woodford,255 F.3d 926, 961
(9th Cir. 2001) (âA challenge based on the Guarantee Clause, however, is a nonjusticiable political question.â); Largess v. Supreme Jud. Ct. for State of Mass.,373 F.3d 219, 226
(1st Cir. 2004) (âWhether or not the plaintiffs can satisfy their self-tailored [justiciability] test, they simply have no viable Guarantee Clause claim on these facts.â); U.S. ex rel. Anti- Discrimination Ctr. of Metro N.Y., Inc., v. Westchester Cnty.,712 F.3d 761, 774
(2d Cir. 2013) (denying Guarantee Clause claim on the merits and explaining that â[a]s this and other courts have repeatedly noted, such determinations are nonjusticiable political questionsâ); Phillips v. Snyder,836 F.3d 707, 717
(6th Cir. 2016) (âEven assuming that a challenge based on the Guarantee Clause may be justiciable in some circumstances, we are aware of no case invalidating the structure of political subdivisions of states under the Clause.â); Kerpen v. Metro. Wash. Airports Auth.,907 F.3d 152, 163
(4th Cir. 2018) (â[E]ven assuming appellantsâ Guarantee Clause claim
is justiciable, it fails on the merits.â); but see Democratic Party of Wis. v. Vos, 966
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But since the Courtâs equivocation in New York, it has reaffirmed its holding in
Pacific States on several occasions. For example, in Arizona State Legislature v.
Arizona Independent Redistricting Commission, 576 U.S. 787(2015), the Court stated: âThe peopleâs sovereign right to incorporate themselves into a Stateâs lawmaking apparatus, by reserving for themselves the power to adopt laws and to veto measures passed by elected representatives, is one this Court has ranked a nonjusticiable political matter.â576 U.S. 787
, 795 n.3 (citing Pacific States,223 U.S. 118
).3 Then in Rucho, decided in 2019, the Supreme Court again appeared to reaffirm the categorical rule that Guarantee Clause claims are nonjusticiable.139 S. Ct. at 2506
. The Court remarked that the district courtâs objection below âseems . . . more properly grounded in the Guarantee Clause of Article IV, § 4, which guarantees to every State in the Union a Republican Form of Government. This Court has several times concluded, however, that the Guarantee Clause does not provide the basis for a justiciable claim.â Id. (citing Pacific States,223 U.S. 118
) (internal quotation marks omitted; alterations
incorporated). The Court did not acknowledge any exceptions to this rule.
Despite such categorical language throughout Supreme Court case law, the Kerr
I panel treated the Courtâs dicta in New York as an invitation to do what the Court
would not: decide what types of Guarantee Clause claims are justiciable. See 744 F.3d
F.3d 581, 589 (7th Cir. 2020) (âThe district court thus went too far in saying that no
Guarantee Clause claim could proceed to adjudication on the merits. Instead, it
should have decided simply whether this particular Guarantee Clause claim is among
the rare ones that can survive a motion to dismiss. We conclude that it is not.â).
3
Admittedly, the Court followed its reference to Pacific States with a âbut
seeâ signal to New York. But until the Court actually overrules Pacific States, it
remains binding law.
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at 1179. In doing so, the Kerr I panel interpreted Baker v. Carr, 369 U.S. 186(1962), as rejecting the categorical rule that all Guarantee Clause claims are nonjusticiable. See Kerr I,744 F.3d at 1174
. But in Baker the Court actually reaffirmed the idea that Guarantee Clause claims are per se nonjusticiable: âThe Court has consistently held that a challenge to state action based on the Guaranty Clause presents no justiciable question[.]â369 U.S. at 224
. Thus, the Court made quite clear it was not relying on the Guarantee Clause.Id. at 209
(âWe hold that the claim pleaded here neither rests upon nor implicates the Guaranty Clause and that its justiciability is therefore not foreclosed by our decisions of cases involving that clause.â);id. at 227
(â[T]he
appellants might conceivably have added a claim under the Guaranty Clause. Of
course, as we have seen, any reliance on that clause would be futile.â). Nowhere in
Baker does the Supreme Court retreat from previous cases holding that Guarantee
Clause cases are nonjusticiable.
B. Claims Seeking to Enforce a Republican Form of Government Lack a
Judicially Manageable Standard
Even if the Supreme Court in Baker departed from its previous holdings that
categorically barred Guarantee Clause claims, the Plaintiffsâ claims here are still
nonjusticiable.
In Baker, the Court walked through the reasoning of its prior Guarantee Clause
cases to derive the six factors that make up the test for justiciability. Id. at 211
(analyzing ârepresentative cases and . . . infer[ring] from them the analytical threads
that make up the political question doctrineâ). These factors include (1) a textually
demonstrable constitutional commitment of the issue to a coordinate political
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department; (2) a lack of judicially discoverable and manageable standards for
resolving it; (3) whether the claim requires the court to make an initial policy
determination of a kind clearly for nonjudicial discretion; (4) whether the claim can be
resolved without expressing a lack of the respect due coordinate branches of
government; (5) an unusual need for unquestioning adherence to a political decision
already made; or (6) the potentiality of embarrassment from multifarious
pronouncement by various departments on one question. Id. at 217.4
The Kerr I panel concluded that none of the six Baker factors were implicated
by the Plaintiffsâ Guarantee Clause claim. 744 F.3d at 1176â82. I disagree. Though I
think any of factors one through five could be implicated in this case, I will focus on
the most obviousâfactor two: the lack of judicially manageable standards. Wholly
aside from Pacific States and its progeny, the lack of any judicially manageable
standard for resolving this case dooms not only the Plaintiffsâ constitutional claim, but
also their statutory claim.
The Kerr I panel did not expressly find any âjudicially manageable standards,â
but assured the readers that â[o]ur review of the record and briefing in this case
satisfies us that judicially discoverable and manageable standards for Guarantee
Clause litigation exist.â Id. at 1179. But if these standards exist, why are the Plaintiffs
4
It is worth noting that the Baker Court determined factor two was implicated
in Lutherâs holding âthat the Guaranty Clause is not a repository of judicially
manageable standards which a court could utilize independently in order to identify a
Stateâs lawful government.â 369 U.S. at 223. Such a statement reaffirms that the
Supreme Court in Baker never questioned its longstanding holding that Guarantee
Clause claims are not justiciable.
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hiding the ball and why didnât Kerr I show us the way? As far as I can tell, in the
decade since the Plaintiffs filed this case, they have not suggested an appropriate
standard that could guide federal courts. During oral argument, the Plaintiffs
acknowledged that some form of direct democracy is acceptable, see Oral Argument at
19:00â25, but they have not told us how much, or how courts ought to assess whether
the âtoo muchâ line has been crossed.
Scholars have tried to fill in these conceptual gaps. For instance, some have
suggested the touchstone of the Guarantee Clause is âpopular sovereignty.â See, e.g.,
Jarret Zafran, Referees of Republicanism: How the Guarantee Clause Can Address
State Political Lockup, 91 N.Y.U. L. Rev. 1418, 1446â47 (2016) (â[J]udicially manageable standards can be derived from the conception of the Clause focused on popular sovereignty, meaning that guarantee claims are justiciable per the Baker criteria.â). Under such an interpretation, the Clause includes an âimplied guarantee of fair and open elections and a prohibition on structures that entrench the status quo and limit popular control.âId.
And others have proposed that laws passed by direct democracy which did not involve âdeliberation by representativesâ violate the Guarantee Clause because it promises a Republican Form of Government. Hans Linde, Who is Responsible for Republican Government?,65 U. Colo. L. Rev. 709
,
722â24 (1994).5
5
Even if a judicially manageable standard can be discerned from scholarship
on the Guarantee Clause, none of this scholarship supports the Plaintiffsâ position.
See Kerr v. Hickenlooper, 759 F.3d 1186, 1195 & n.2 (10th Cir. 2014) (Gorsuch, J.,
dissenting from denial of rehearing en banc) (â[M]uch of [the scholarship] suggests
that the Clause may rule out a state monarchy, a smaller amount . . . suggests the
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But such attempts to read judicially manageable standards into the Guarantee
Clause fail. While a focus on âpopular sovereigntyâ may sound more familiar than a
guarantee of a Republican Form of Government, shifting vocabulary does not mean the
Guarantee Clause suddenly has a judicially manageable standard. It just kicks the can
down the road. Decisions about whether a stateâs practices for electing representatives
are sufficiently âpopularâ are inherently political decisions. Accord Rucho, 139 S. Ct.
at 2499(âUnable to claim that the Constitution requires proportional representation outright, plaintiffs inevitably ask the courts to make their own political judgment about how much representation particular political parties deserve . . . . But federal courts are not equipped to apportion political power as a matter of fairness[.]â); see also Francesca Procaccini, Reconstructing State Republics,89 Fordham L. Rev. 2157
, 2227 (2021) (â[T]here is no principled interpretive methodology for determining the contemporary meaning and requirements of republican government that is divorced from baseline political assumptions.â). And it canât be the case that the judicially manageable standard is whether a state law is the product of deliberation among representatives. The Guarantee Clause provides no indication of how much or what Clause may rule out a complete direct democracy, but none . . . credibly suggests a limited dose of direct democracy of the sort at issue here is constitutionally problematic.â (citing Robert Natelson, A Republic, Not a Democracy? Initiative, Referendum, and the Constitutionâs Guarantee Clause,80 Tex. L. Rev. 807
, 811 n.19 (2002)); G. Edward White, Reading the Guarantee Clause,65 U. Colo. L. Rev. 787
, 803â06 (1994); Akhil Reed Amar, The Central Meaning of Republican Government: Popular Sovereignty, Majority Rule, and the Denominator Problem,65 U. Colo. L. Rev. 749
, 749â52, 761â73 (1994); Jonathan Toren, Protecting Republican
Government from Itself: The Guarantee Clause of Article IV, Section 4, 2 N.Y.U. J.L.
& Liberty 371, 374â92, 392â99 (2007))).
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form of deliberation would be required by state representatives to ensure a given
initiative or referendum does not run afoul of the Constitution. Moreover, the
Supreme Court has approved of various exercises of direct democracy on numerous
occasions. See, e.g., Ariz. State Legislature, 576 U.S. at 823â24 (allowing a ballot
initiative that created a redistricting commission); Pacific States, 223 U.S. 149â51
(upholding a ballot initiative taxing certain classes of corporations).
Without any judicially manageable standard to offer, the Plaintiffs have at
various points in litigation attempted to distinguish taxation as a core legislative
function. Thus, according to the Plaintiffs, representative government cannot exist
without the power to tax. Again, the Plaintiffs have not indicated how much the
citizenry can supervise the state legislatureâs taxing and spending power. The
Plaintiffs seem to believe the federal courts can infer with Goldilocks-precision how
much interference is âtoo muchâ and âjust right.â And, even assuming a grain of truth
in the Plaintiffsâ argument that taxing is a core legislative power (bearing in mind that
the United States had no national income tax until 1913), assigning a role to the
electorate in raising taxes and setting tax policy hardly changes a republican
government into something akin to a monarchy.6
One would think a case in its second decade would have more. After all,
Colorado has been stuck in federal court under two governors, wasting litigation
6
Colorado voters have approved numerous state and local tax measures
involving taxing and spending since 1992, so TABOR has not been an insuperable
barrier to voter approval of consensus-driven proposals.
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resources along the way. As one of us said in an earlier review of the complaint,
âFederalism and comity appear to count for little when we condemn a state, its
governor, and its constitution to a multi-year scavenger hunt up and down the federal
court system looking for some judicially manageable standard that might permit us to
lawfully entertain the case in the first place.â Kerr v. Hickenlooper, 759 F.3d at 1196
(Gorsuch, J., dissenting from denial of rehearing en banc).
The Plaintiffsâ struggle to articulate a manageable standard should come as no
surprise. No less a luminary than John Adams confessed he ânever understoodâ what
the Guarantee Clause meant and insisted that âno man ever did or will.â Letter from
John Adams to Mercy Warren (July 20, 1807),
https://founders.archives.gov/documents/Adams/99-02-02-5195.7
If the Plaintiffs now expect us to develop a standard of our own, they are
barking up the wrong tree. Courts do not engage in an âamorphous general
supervision of the operations of government.â Raines v. Byrd, 521 U.S. 911, 829 (1997). That is Congressâs job. Where, as here, âa court is given no standard by which to adjudicate a dispute[,] . . . resolution of the suit is beyond the judicial role envisioned by Article III.â Zivotofsky,566 U.S. at 204
(Sotomayor, J., concurring).
Here, both the Constitution and the Enabling Act contain virtually identical
guarantees to a Republican Form of Government. The Plaintiffs have made no effort
to supply us with a judicially manageable standard to determine whether TABOR
7
Adams went on to opine that â[t]he word [Republican] is so loose and
indefinite that successive predominant factions will put glosses and constructions
upon it as different as light and darkness.â Id.
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violates either the constitutional or statutory guarantees. Accordingly, I would find
neither of the Plaintiffsâ claims to be justiciable under Baker.
Whatever the status of the current law on the justiciability of Guarantee Clause
claims, we know Pacific States remains binding law. That case squarely forecloses the
Plaintiffsâ claim that TABOR violates the Guarantee Clauseâs promise of a Republican
Form of Government. And even if Pacific States must be reinterpreted through the
lens of Baker, the Plaintiffs have still failed to supply us with a judicially manageable
standard we can apply to challenges of state action under the Guarantee Clause. If the
Plaintiffs believe the door is still open to state a justiciable claim under the Guarantee
Clause, that is an issue they should raise with the Supreme Court. Until then, I would
find that we lack jurisdiction to consider the Plaintiffsâ claims on the merits.
II. The decision below should be converted to a dismissal with prejudice
Although the majority affirms and remands to the district court without
prejudice, I would convert the dismissal below to one with prejudice. The district
court considered the merits of the case, and we affirm on the merits. Thus, conversion
to a dismissal with prejudice would enforce the practical effect of this ruling: Plaintiffs
are prevented from refiling this case.
Judge Bacharachâs Concurrence contends that in this circuit, changing a
dismissal without prejudice to a dismissal with prejudice runs afoul of the cross-appeal
rule. Concurrence at 6 (citing June v. Union Carbide Corp., 577 F.3d 1234, 1248 n.8
(10th Cir. 2009)). In Union Carbide, a panel of this court avoided the question of
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whether an issue was jurisdictional or went to the merits because, regardless of the
categorization, it concluded that the categorization could not change the nature of the
dismissal. See 577 F.3d at 1248n.8. The panel explained that the appelleesâ âfailure to cross-appeal on this issue precludes us from remanding for entry of dismissal with prejudice.âId.
According to the panel there, the cross-appeal rule âpreclude[s] an appellate court, in the absence of a cross-appeal, from changing a dismissal without prejudice to a dismissal with prejudice.âId.
But if in Union Carbide our court viewed this road as blocked, the Supreme
Court has since removed any barriers.
In Morrison v. National Australia Bank Ltd., the Supreme Court needed to
decide whether § 10(b) of the Securities Exchange Act of 1934 provided a cause of
action to foreign plaintiffs for âmisconduct in connection with securities traded on
foreign exchanges.â 561 U.S. 247 (2010), at 251. Because most of the alleged
misconduct took place abroad, the district court determined § 10(b) did not cover the
complained of securities fraud. The district court, following Second Circuit precedent,
dismissed the complaint under Rule 12(b)(1) for lack of subject-matter jurisdiction
based on the extraterritorial nature of most of the conduct.
The Supreme Court affirmed the dismissal of the plaintiffâs claims, but did so
under Rule 12(b)(6) rather than Rule 12(b)(1). The Court explained that the
extraterritorial reach of § 10(b) was a question going not to the Courtâs jurisdiction,
but to the merits of the case. Id. at 254 (âBut to ask what conduct § 10(b) reaches is to
16
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ask what conduct § 10(b) prohibits, which is a merits question.â). Given this error, the
plaintiff asked the Supreme Court to remand for the district court to reevaluate the
complaint under Rule 12(b)(6). The Court concluded remand was âunnecessary.â Id.
It reasoned that â[s]ince nothing in the analysis of the courts below turned on the
mistake, a remand would only require a new Rule 12(b)(6) label for the same Rule
12(b)(1) conclusion.â Id.8 Thus, the Court âproceed[ed] to address whether
petitionersâ allegations state a claim.â Id. In doing so, the Supreme Court did not
address the cross-appeal rule because it did not have toâit simply applied the correct
terminology to match the substance of what the lower courts had already done.9
To remand when nothing turned on the district courtâs mistake would be an
exercise in futilityâthe district court would simply reapply the same legal analysis
8
In such instances, the appellate court is not enlarging the rights of the
defendant. To enlarge the rights of the defendant, an appellate courtâs decision would
have to change the ultimate outcome in favor of the defendant. But whether the same
question is answered (improperly) under the heading of Rule 12(b)(1) or (properly)
under Rule 12(b)(6), the ultimate outcome of the case remains the same: the plaintiffs
cannot bring their claim.
9
Judge Bacharachâs Concurrence insists that in Morrison the Supreme Court
did not open up any paths through the cross-appeal rule. Concurrence at 6â7. Again,
it did not need to. The cross-appeal rule is implicated only when an appellate court
alters a judgment to benefit the non-appealing party. See Greenlaw, 554 U.S. at 244.
In Morrison, the appellees never cross-appealed. See Morrison v. National Australia
Bank Ltd., 547 F.3d 167(2d Cir. 2008), affâd,561 U.S. 247
(2010). Yet after properly categorizing the question as one addressing the merits, the Supreme Court determined a remand was unnecessary, instead explaining that all that would happen on remand was a switching of labels. Morrison,561 U.S. at 254
. The same is true here. Thus,
to the extent that this court suggested in Union Carbide that all instances of
converting a dismissal without prejudice to a dismissal with prejudice enlarge an
appelleeâs rightsâeven when nothing turned on the district courtâs incorrect labeling
of the dismissalâI disagree with that conclusion in light of Morrison.
17
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under the correct heading and reach the same result. Any purposes underlying the
cross-appeal rule would not be advanced by applying the rule to situations like the one
present in Morrison.
Consequently, the fact that dismissal under Rule 12(b)(1) is without prejudice
and we would consider the dismissal under Rule 12(b)(6) with prejudice is, in this
case, a distinction without a difference.10 The district court answered the correct
merits question, just under the wrong heading. Though the district court styled its
dismissal as one without prejudice, it answered the merits question and thus dismissal
should have been with prejudice. Accordingly, there would be nothing amiss if we
were to correct this error because our dismissal with prejudice would have no practical
effect on the district courtâs conclusion. In a similar fashion, we have previously
10
âWhen a federal court rules that a dismissal is with prejudice, it is saying
only that the claim cannot be refiled in that court.â Styskal v. Weld Cnty. Bd. of Cnty.
Comârs, 365 F.3d 855, 859 (10th Cir. 2004) (internal quotation marks omitted;
alterations incorporated). Here, that was the practical effect of the district courtâs
order. Neither the text of the Constitution or the Colorado Enabling Act will change.
Thus, the plaintiffs have no cause of action to pursue these claims against their parent
state. In concluding that the plaintiffs lacked political subdivision standing, the
district court was making a merits determination: these plaintiffs cannot bring this
claim in the district court again. In now labeling the present dismissal as âwith
prejudiceâ we would do no more than correctly label the dismissal based on its actual
effect. The fact that the district court improperly labeled the dismissal in the first
instance based on our previous precedent is of no moment.
The Supreme Court has also made clear that an âadjudication on the merits is
the opposite of a dismissal without prejudice[.]â Semtek Intern. Inc. v. Lockheed
Martin Corp., 531 U.S. 497, 505(2001) (internal quotation marks omitted). Given that Judge Bacharachâs Concurrence agrees that we are adjudicating based on the substance of the claim, rather than on procedural or jurisdictional grounds, it is unclear how it also believes the dismissal can also be without prejudice. Seeid.
(âWith prejudice is an acceptable form of shorthand for an adjudication upon the
merits.â (internal quotation marks omitted)).
18
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â[e]xercis[ed] our plenary power [to] treat the governmentâs [Rule 12(b)(1)] motion as
a motion for summary judgment.â Redmon ex rel. Redmon v. United States, 934 F.2d
1151, 1155(10th Cir. 1991). And the Seventh Circuit, which applies a narrow rule, has regularly modified dismissals for lack of jurisdiction to dismissals on the meritsâin other words, modification from dismissal without prejudice to dismissal with prejudice. See, e.g., Matushkina, 877 F.3d at 297; Morfin v. Tillerson,851 F.3d 710, 714
(7th Cir. 2017); Hazama v. Tillerson,851 F.3d 706, 710
(7th Cir. 2017). As we would merely be correcting a âthresholdâ mistake in the district courtâs analysis, I would hold that the cross-appeal rule does not apply in this case, and allowing Plaintiffs to refile to ask the exact same question is unnecessary. Morrison,561 U.S. at 253
. Thus, I would both affirm the dismissal below and convert it to a dismissal
with prejudice.
Conclusion
Because I consider the Guarantee Clause question to be nonjusticiable, I would
not reach the merits of this case. But the opinion of this court does decide the merits,
and the district court did as well. Thus, this court should give the order the true effect
of a dismissal on the merits. The case should be dismissed with prejudice.
19
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Kerr v. Polis, No. 17-1192
BACHARACH, J., concurring, joined by McHUGH, J. and MORITZ, J.,
Circuit Judges.
I agree with the majority that
ďˇ the district court erred in deciding that the political
subdivisions lack standing,
ďˇ we can consider whether to affirm the dismissal based on the
failure to state a valid claim, and
ďˇ the political subdivisions have not stated a valid claim.
But I respectfully disagree with the disposition that Chief Judge
Tymkovich proposes in his concurrence. 1 There he says that he would
convert the dismissal from one without prejudice into one with prejudice
even though the Governor did not cross-appeal.
As Chief Judge Tymkovich states, the cross-appeal rule applies
âwhen an appellate court alters a judgment to benefit the non-appealing
party.â Chief Judge Tymkovichâs Concurrence at 17 n.9 (citing Greenlaw
v. United States, 554 U.S. 237, 244 (2008)). 2 Despite this rule, Chief Judge
1
In writing for the majority, Chief Judge Tymkovich affirms the
dismissal without prejudice. In his concurrence, however, he states that he
would change the disposition to a dismissal with prejudice.
2
As Judge Briscoe observes, this benefit may come from either
ďˇ enlarging the benefit to the appellee or
ďˇ lessening the rights of the appellant.
Judge Briscoeâs Partial Concurrence & Partial Dissent at 22 (citing
Jennings v. Stephens, 574 U.S. 271, 276 (2015)).
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Tymkovich would alter the judgment without a cross-appeal. The majority
instead affirms, leaving the disposition unaltered. This disposition is
necessary because the cross-appeal rule prevents alteration of the dismissal
without prejudice into a dismissal with prejudice. 3
The district court ordered dismissal for lack of jurisdiction, which
would ordinarily be without prejudice. Maj. Op. at 9; see Brown v.
Buhman, 822 F.3d 1151, 1179(10th Cir. 2016). If we were to uphold the dismissal and change it to a dismissal with prejudice, weâd enlarge the judgment for the Governor. We canât enlarge the judgment for the Governor because he did not cross-appeal. See June v. Union Carbide Corp.,577 F.3d 1234
, 1248 n.8 (10th Cir. 2009) (denying the appelleeâs request to change a dismissal without prejudice to a dismissal with prejudice absent a cross-appeal); accord Conover v. Lein,87 F.3d 905, 908
(7th Cir. 1996) (concluding that the Court of Appeals lacked âjurisdiction
to modifyâ the dismissal from one without prejudice to one with prejudice
because the appellee had not cross-appealed).
Chief Judge Tymkovich contends that he wouldnât be enlarging the
judgment because the pleading defect couldnât be cured even though the
district courtâs dismissal had been without prejudice. Chief Judge
3
A majority of the en banc court agrees. See Judge Briscoeâs Partial
Concurrence & Partial Dissent at 18â22.
2
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Tymkovichâs Concurrence at 17â19 & nn.9â10. This contention errs
factually and legally.
In my view, Chief Judge Tymkovich errs factually by assuming that
the political subdivisions couldnât possibly remedy the pleading defect
even if the dismissal remained without prejudice. Id.at 18 n.10. For this contention, Chief Judge Tymkovich states that â[n]either the text of the Constitution or the Colorado Enabling Act will change.âId.
But the
political subdivisions could present legislative history if they refile
because the majority takes no position on the availability of âextratextual
sources to discern Congressâs intent.â Maj. Op. at 25 n.8.
Chief Judge Tymkovich states that the political subdivisions have
already had a chance to present extratextual interpretive aids like
legislative history. For the sake of argument, letâs credit this statement.
But the dismissal without prejudice allows the political subdivisions to file
a new action and present the district court with new evidence of legislative
history.
The district court could then exercise its discretion to consider the
newly submitted evidence of legislative history or decide that the
submission is too late. Chief Judge Tymkovich would take this opportunity
away from the political subdivisions by preventing them from even trying
to present the district court with new evidence of legislative history. His
proposed change in disposition would thus stymie the political
3
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subdivisions, barring them from refiling the suit and presenting new
evidence of legislative history. 4
Chief Judge Tymkovichâs approach also fails legally by relying on a
Seventh Circuit opinion: Matushkina v. Nielsen, 877 F.3d 289, 296â97 (7th Cir. 2017). Chief Judge Tymkovichâs Concurrence at 19. Irrespective of the Seventh Circuitâs approach, we treat the cross-appeal rule as jurisdictional. See Johnson v. Spencer,950 F.3d 680
, 722â23 (10th Cir. 2020) (concluding that we âlack jurisdictionâ to âafford . . . any reliefâ to the appellees because they did not file a cross-appeal); Weber v. GE Grp. Life Assur. Co.,541 F.3d 1002, 1008
(10th Cir. 2008) (stating that we lack
jurisdiction to enlarge the rights of the appellee absent a cross-appeal). 5
4
Judge Briscoe concludes that âthe majority opinion creates an all but
insurmountable burden to [the political subdivisionsâ] prevailing on the
merits.â Judge Briscoeâs Partial Concurrence & Partial Dissent at 23. For
this conclusion, Judge Briscoe points to Chief Judge Tymkovichâs
concurrence, which views the dismissal without prejudice as the practical
equivalent of a dismissal with prejudice. Id. There, however, Chief Judge
Tymkovich reasoned that the text of the Constitution and Rules Enabling
Act wonât change. Chief Judge Tymkovichâs Concurrence at 18 n.10.
Judge Briscoe elsewhere acknowledges that the political subdivisions
can refile and submit legislative history showing congressional intent to
protect political subdivisions. Judge Briscoeâs Partial Concurrence &
Partial Dissent at 23 n.10. Given this opportunity to cure the defect, the
dismissal without prejudice does not create an âinsurmountable burden to
[the political subdivisionsâ] prevailing on the merits.â Id. at 23.
5
The political subdivisions did not question our jurisdiction to affirm
under Rule 12(b)(6). But we must ensure our own jurisdiction. See, e.g.,
Amazon, Inc. v. Dirt Camp, Inc., 273 F.3d 1271, 1274 (10th Cir. 2001)
4
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Given the jurisdictional nature of our rule, we have strictly required a
cross-appeal, resisting the temptation to change the dismissal from one
âwithout prejudiceâ to one âwith prejudiceââeven when the change
wouldnât make any practical difference.
An example appears in June v. Union Carbide Corp., 577 F.3d 1234(10th Cir. 2009). There Colorado residents sued under the Price-Anderson Act, claiming that the defendants had failed to provide medical monitoring after exposing individuals to radiation.Id. at 1236
. The district court ordered dismissal without prejudice for lack of subject-matter jurisdiction based on the plaintiffsâ failure to allege bodily injury.Id. at 1238
.
On appeal, the defendants argued that
ďˇ a bodily injury constituted an element of the claim rather than a
jurisdictional requirement and, as a result,
ďˇ the dismissal should have been with prejudice (rather than
without prejudice).
Id.at 1248 n.8. Changing the dismissal from one without prejudice to one with prejudice would not have made a practical difference because the failure to allege a bodily injury would have torpedoed the claim either way. Seeid.
(â[O]ur standard of appellate review of the bodily-injury issue
would be the same in this case whether we treat the issue as a matter of
jurisdiction or of the sufficiency of the evidence on summary judgment.â).
(âAlthough neither party challenges our appellate jurisdiction, we have an
independent duty to examine our own jurisdiction.â).
5
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But the lack of a practical difference didnât matter because the failure to
file a cross-appeal categorically prohibited us from changing the dismissal
into one with prejudice: âThis rule [the cross-appeal rule] applies to
preclude an appellate court, in the absence of a cross-appeal, from
changing a dismissal without prejudice to a dismissal with prejudice.â Id.(quoting Standard Inv. Chartered, Inc. v. Natâl Assân of Sec. Dealers, Inc.,560 F.3d 118, 126
(2d Cir. 2009)).
As an en banc court, we have the power to overrule any of our panel
opinions. Chief Judge Tymkovich would wield this power here,
âdisagree[ing]â with June to the extent that it impedes conversion to a
dismissal with prejudice. Id. at 17 n.9. In other words, June would apply
except when it wouldnât. By sua sponte converting the dismissal to one
with prejudice, Chief Judge Tymkovich would
ďˇ confuse our jurisdictional cross-appeal rule for future panels
and practitioners and
ďˇ modify the rule without briefing from the parties.
Defending this approach, Chief Judge Tymkovich suggests that the
Supreme Court has recognized jurisdiction to decide the merits when a
district court has dismissed the case for lack of jurisdiction. For this
suggestion, Chief Judge Tymkovich relies primarily on Morrison v.
National Austl. Bank Ltd., 561 U.S. 247 (2010). Chief Judge Tymkovichâs
Concurrence at 16â18 & n.9. But the Supreme Court in Morrison never
6
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even mentioned the cross-appeal rule (or, for that matter, even said
whether a cross-appeal had been filed). 6 We canât interpret Morrison to
recognize jurisdiction when it wasnât even discussed. See Ariz. Christian
Sch. Tuition Org. v. Winn, 563 U.S. 125, 144â45 (2011) (âWhen a potential jurisdictional defect is neither noted nor discussed in a federal decision, the decision does not stand for the proposition that no defect existed.â); United States v. L.A. Tucker Truck Lines, Inc.,344 U.S. 33, 38
(1952) (âEven as to our own judicial power or jurisdiction, this Court has followed the lead of Chief Justice Marshall who held that this Court is not bound by a prior exercise of jurisdiction in a case where it was not questioned and it was passed sub silentio.â); see also Cope v. Kan. State Bd. of Educ.,821 F.3d 1215
, 1221 n.5 (10th Cir. 2016) (âEdwards and
other cases [the plaintiff] relies on do not discuss standing, and so do not
stand for the proposition that a standing defect did not exist on the facts of
those cases.â).
Chief Judge Tymkovich also points to a Tenth Circuit opinion and
two Seventh Circuit opinions: Redmon ex rel. Redmon v. United States, 934
F.2d 1151(10th Cir. 1991), Morfin v. Tillerson,851 F.3d 710
(7th Cir.
6
Chief Judge Tymkovich states that there was no cross-appeal in
Morrison, citing the Second Circuitâs opinion. Chief Judge Tymkovichâs
Concurrence at 17 n.9. But the Second Circuitâs opinion never said whether
a cross-appeal had been filed. See generally Morrison v. Natâl Austl. Bank
Ltd., 547 F.3d 167(2d Cir. 2008), affâd,561 U.S. 247
(2010).
7
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2017), and Hazama v. Tillerson, 851 F.3d 706 (7th Cir. 2017). Chief Judge
Tymkovichâs Concurrence at 19. But none of these opinions discuss the
cross-appeal rule or even say whether the appellees had cross-appealed.
With no cross-appeal, we lack jurisdiction to enlarge the judgment
for the Governor by changing the dismissal without prejudice to a
dismissal with prejudice. But thereâs no need to change the disposition: the
Court has properly affirmed the dismissal as one without prejudice. See
Orr v. Clements, 688 F.3d 463, 465(8th Cir. 2012) (stating that a dismissal under Rule 12(b)(6) âcan be rendered without prejudice if the court so specifiesâ); see also Carter v. Norfolk Cmty. Hosp. Assoc.,761 F.2d 970, 974
(4th Cir. 1985) (âA district courtâs dismissal under Rule 12(b)(6) is, of
course, with prejudice unless it specifically orders dismissal without
prejudice. That determination is within the district courtâs discretion.â).
Judge Briscoe questions the authority of a court to dismiss an action
without prejudice under Rule 12(b)(6). Judge Briscoeâs Partial
Concurrence & Partial Dissent at 17â18 n.8. But this authority comes from
Rule 41(b) of the Federal Rules of Civil Procedure. This rule does two
things:
1. It allows the court to dismiss an action or claim for failure to
comply with the rules or an order.
2. It addresses the effect of various dismissals.
8
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The first part of the rule doesnât apply, but the second part does. It
states: âUnless the dismissal order states otherwise, a dismissal under this
subdivision (b) and any dismissal not under this ruleâexcept one for lack
of jurisdiction, improper venue, or failure to join a party under Rule 19â
operates as an adjudication on the merits.â Fed. R. Civ. P. 41(b) (emphasis
added). By its terms, the second part of the rule addresses the effect of
various other dismissals, including those for failure to state a valid claim
under Rule 12(b)(6). See Paganis v. Blonstein, 3 F.3d 1067, 1071 (7th Cir.
1993) (stating that Rule 41(b) governs characterization of a dismissal
under Rule 12(b)(6) as with or without prejudice).
For these dismissals, the second part of Rule 41(b) allows a court to
specify whether a dismissal is or isnât âan adjudication on the merits.â See
Fed. R. Civ. P. 41(b) (stating that dismissals operate âas an adjudication on
the meritsâ â[u]nless the dismissal order states otherwiseâ). âAn
adjudication on the meritsâ is, simply, a dismissal with prejudice. See
Semtek Intâl Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505(2001) (ââAn adjudication upon the meritsâ is the opposite of âa dismissal without prejudice.ââ (quoting Fed. R. Civ. P. 41(b)); Cooter & Gell v. Hartmarx Corp.,496 U.S. 384, 396
(1990) (ââ[D]ismissal . . . without prejudiceâ is a
dismissal that does not âoperat[e] as an adjudication upon the merits
. . . .ââ (quoting Fed. R. Civ. P. 41(a))). So Rule 41(b) allows the district
court to say whether a dismissal under Rule 12(b)(6) is or isnât an
9
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âadjudication on the meritsâ or, put another way, whether the dismissal is
with or without prejudice. 7 See 9 Charles A. Wright & Arthur R. Miller,
Federal Practice and Procedure § 2373 (4th ed. 2020) (âIf the court does
not specify that the dismissal is without prejudice, and the basis for it
comes within the terms of the final sentence of Rule 41(b), it will be
treated as being with prejudice.â). So a dismissal under Rule 12(b)(6) can
be with or without prejudice. See Rollins v. Wackenhut Servs., Inc., 703
F.3d 122, 132 (D.C. Cir. 2012) (Kavanaugh, J., concurring) (â[U]nder
Rules 41(b) and 12(b)(6), a district court has discretion to dismiss a
complaint without prejudice when the district court concludes that
7
Judge Briscoe suggests that this rule allows only the district court
(rather than our court) to specify that the dismissal is without prejudice.
Judge Briscoeâs Partial Concurrence & Partial Dissent at 17â18 n.8. I
agree. But here the district court itself specified that the dismissal was for
lack of jurisdiction, whichâby definitionâis a dismissal without
prejudice. So affirmance does not change the nature of the dismissal. The
existing dismissal remains one without prejudice.
10
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circumstances so warrant.â). 8 We thus have no reason to change the district
courtâs disposition; we can instead simply affirm. 9
Judge Briscoe also suggests that this âmiddle pathâ implicates the
cross-appeal rule. Judge Briscoeâs Partial Concurrence & Partial Dissent at
22. She invokes the Supreme Courtâs observation that the rule applies to
âprevent lessening of the rights of the appellant.â Id.(citing Jennings v. Stephens,574 U.S. 271
, 276 (2015)); see note 2, above. But affirming the
dismissal without prejudice does not lessen the rights of the political
subdivisions. The disposition of their claims remains the same: It was
without prejudice and stays that way.
8
Indeed, we have required some dismissals under Rule 12(b)(6) to be
without prejudice, such as those for prematurity under Heck v. Humphrey,
512 U.S. 477(1994), failure to exhaust administrative remedies, and prudential ripeness. See Fottler v. United States,73 F.3d 1064
,1065â66 (10th Cir. 1996) (prematurity under Heck); Gallagher v. Shelton,587 F.3d 1063, 1068
(10th Cir. 2009) (failure to exhaust administrative remedies); N. Mill Street, LLC, v. City of Aspen,6 F.4th 1216
, 1320 & n.22 (10th Cir.
2021) (prudential ripeness).
9
Chief Judge Tymkovich states that I agree that we are adjudicating
the substance of the claim. Chief Judge Tymkovichâs Concurrence at 18
n.10. But adjudication of the substance of a claim differs from adjudication
of the merits. We often loosely say that a ruling is âon the meritsâ when it
addresses the substance of a claim. Semtek Intâl Inc. v. Lockheed Martin
Corp., 531 U.S. 497, 501â02 (2001). But Rule 41(b) uses the term âadjudication upon the meritsâ to refer to a dismissal with prejudice (even if the ruling addressed the substance of the claim).Id. at 502
, 505â06. The
majority has not ordered dismissal with prejudice, so the Court has not
made an adjudication upon the merits under Rule 41(b).
11
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Judge Briscoe states that affirmance of the dismissal without
prejudice erroneously âfocuses only on the ultimate judgment while
ignoring the substantive legal pronouncements that precede it.â Judge
Briscoeâs Partial Concurrence & Partial Dissent at 23. But the cross-appeal
rule requires us to focus on the district courtâs judgment rather than the
reasoning behind it.
The Supreme Court addressed this issue in Jennings v. Stephens, 574
U.S. 271(2015). There the Court considered whether a habeas petitioner had needed to file a cross-appeal to defend the judgment itself (a grant of habeas relief) based on a theory that the district court had rejected.Id.
at
273â75. The State argued that the petitioner had needed to cross-appeal
because he was seeking to diminish the Stateâs rights at the retrial. Id. at
277. The Supreme Court rejected this argument, reasoning that we consider
the need for a cross-appeal based on the district courtâs judgment rather
than its reasoning: âA prevailing party seeks to enforce not a district
courtâs reasoning, but the courtâs judgment. This Court, like all federal
appellate courts, does not review lower courtsâ opinions, but their
judgments.â Id. at 277 (citation omitted; emphasis in original). The Court
reasoned that the petitioner wasnât trying to change the judgment itself (an
order for the State to either release the petitioner, resentence him, or
commute his sentence). Id. at 800. So he didnât need to cross-appeal even
12
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though adoption of his appellate theory would allow him to pursue a
habeas theory that the district court had rejected. Id. at 799â802.
The same is true here. The district court dismissed the action for lack
of jurisdiction, which is treated as a dismissal without prejudice. Like the
Supreme Court in Jennings, we consider the need for a cross-appeal based
on the scope of the district courtâs judgment rather than the reasoning
behind it. The district court dismissed the action for lack of jurisdiction,
which the majority has treated as a dismissal without prejudice. Affirming
that dismissal without prejudice does not expand or diminish any partyâs
rights from the judgment itself. So no cross-appeal is needed for us to
affirm the dismissal as one without prejudiceâjust as no cross-appeal was
needed in Jennings to affirm the habeas judgment based on a theory that
the district court had rejected.
* * *
In my view, the majority properly characterizes the restriction on
claims by political subdivisions. But we need not change the dismissal
without prejudice to one with prejudice. Dismissals under Rule 12(b)(6)
can be without prejudice. So the majority easily avoids the cross-appeal
rule by leaving the dismissal as one without prejudice.
Chief Judge Tymkovich would ignore the cross-appeal rule,
reasoning that the change in disposition makes no practical difference.
This approach would muddy our precedent: The change made no practical
13
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difference in June v. Union Carbide, and we held there that the cross-
appeal rule prevented us from changing the dismissal without prejudice to
one with prejudice. Chief Judge Tymkovich cites June but then questions
its conclusion, taking an approach that would confuse future panels and
litigants. The majority properly resists that approach, leaving our
precedent intact by affirming and leaving the dismissal without prejudice.
14
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No. 17-1192, Kerr v. Polis
BRISCOE, Circuit Judge, concurring in part and dissenting in part, joined by
PHILLIPS, Circuit Judge.
I agree with the majority that the limitation on political subdivision suits against a
parent state (what we used to call âpolitical subdivision standingâ) is not a threshold
jurisdictional inquiry. Instead, this limitation is a merits analysis that looks to whether a
constitutional or statutory provision allows a subdivision to bring a claim against its
parent state. Accordingly, the district court erred in considering that issue on a
Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, and we should
reverse that ruling and remand for further proceedings.
And that should end the story. This is an appeal from the district courtâs dismissal
for lack of jurisdiction. The majority, however, sees that as irrelevant and goes beyond
the district courtâs ruling by dismissing the plaintiffsâ complaint on the merits. In its
view, we are ârequiredâ to convert the motion the Governor did file into one he did not,
consequently hold the plaintiffs to a standard that has not yet been applied to them, and
then simply âcorrectâ the district courtâs judgment because, the majority declares, after
ten years âthe day has come to affirm the dismissal of the complaint.â Maj. Op. at 6, 27â
28. To smooth over this metamorphosis, the majority styles its opinion as affirming on
âalternate grounds,â rather than describing its work for what it is: a reversal on alternative
grounds.1 Maj. Op. at 5, 12â13, 26â29.
1
We have discretion to affirm on alternative grounds if three conditions are met:
(1) if âthe ground was fully briefed and argued here and belowâ; (2) if âthe parties have
had a âfair opportunity to develop the [factual] recordââ; and (3) if, âin light of factual
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The majorityâs resolution flies in the face of the cross-appeal rule, which states
that we may not enlarge the rights of a non-appealing party nor shrink the rights of the
appealing party without a cross-appeal. Jennings v. Stephens, 574 U.S. 271, 276 (2015).
We all agree that the district court erred in characterizing the political subdivision
âstandingâ doctrine as jurisdictional. The proper course is therefore to reverse and
remand. The district court would then be free to hear any merits arguments on a
Rule 12(b)(6) motion that the Governor might raise and decide for itself whether the
plaintiffs have stated a claim. It could interpret the Colorado Enabling Act and the
Guarantee Clause in the first instance.
Yet the majority decides these issues for the district court. In doing so, the
majority gives the Governor more than he asked for and leaves the plaintiffs with
nothingâno live case, and no viable path towards refiling. While the majority views its
ruling as compliant with the cross-appeal rule, the reality is to the contrary. The Governor
greatly benefits from the majorityâs reading of the applicable case law, while the
findings to which we defer or uncontested facts, our decision would involve only
questions of law.â Elkins v. Comfort, 392 F.3d 1159, 1162(10th Cir. 2004) (internal citations omitted). We do not, however, have discretion to reverse on alternative grounds. See Hayes v. SkyWest Airlines, Inc.,12 F.4th 1186
, 1201 (10th Cir. 2021) (â[W]e hesitate to reverse a district court on an unraised theory.â). Although the majority labels its ruling as affirming on alternative grounds, in spite of that label the majority affirms no ruling or rationale adopted by the district court. At any rate, the merits issues now advanced by the majority were not fully briefed here, and not briefed at all to the district court; the parties have not had a chance to develop the factual record; and the decision does not turn on a pure question of law. As such, affirming on alternative grounds does not satisfy the requirements set forth in Elkins. See Elkins,392 F.3d at 1162
.
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plaintiffs are left with a merits dismissal without prejudice rather than a ruling to reverse
and remand for further proceedings.
In the majorityâs efforts to dispose of this case once and for all, it violates the
cross-appeal rule, ignores the key role played by the partiesâ participation in their own
litigation, and flouts our role as a court of review. The majority today transforms this case
from a Rule 12(b)(1) dismissal for lack of standing to a Rule 12(b)(6) dismissal on the
merits. To that end, the majority announces âthe proper framework for determining
whether a political subdivision has stated a viable claim against its parent state,â then
proceeds to apply that analytical framework to this case as it presently stands without
affording the plaintiffs the opportunity to meet these newly minted standards in a
Rule 12(b)(6) context, and given their lack of opportunity to meet these new Rule
12(b)(6) standards, finds the plaintiffsâ arguments wanting. Maj. Op. at 12. I respectfully
dissent, both from the majorityâs conclusion of what the political subdivision limitation
inquiry entails, and from its decision to dismiss the complaint. Because we conclude that
the political subdivisions here do have Article III standing to challenge TABORâthe
only inquiry that matters on review of this Rule 12(b)(1) motion to dismiss for lack of
subject matter jurisdictionâI would reverse the district courtâs Rule 12(b)(1) ruling and
remand.
I
I will begin with where the majority gets it right. The majority correctly holds that
the political subdivision plaintiffs have Article III standing, and that our political
subdivision âstandingâ doctrine is not jurisdictional and therefore not properly considered
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on a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. The Supreme
Court made clear in Lexmark âthat courts err by characterizing as a question of âstandingâ
the issue of whether a particular litigant is authorized to bring a substantive claim under a
statute.â United States v. Wells, 873 F.3d 1241, 1261(10th Cir. 2017) (citing Lexmark Intâl, Inc. v. Static Control Components, Inc.,572 U.S. 118
, 127â28 (2014)).
Accordingly, referring to this merits analysis as a âlimitationâ on political subdivisions
whenever they bring a suit against their parent state is more appropriate and will limit the
risk that future courts or parties err by treating this question as a matter of jurisdiction.
II
But that is where I part ways with the majority. In my view, our decision in City of
Hugo v. Nichols (Two Cases), 656 F.3d 1251 (10th Cir. 2011), either unnecessarily
narrowed the ability of a political subdivision to sue its parent state or has been misread
to do so. Today, the majority further erodesâand may have completely eliminatedâthat
ability in two ways. First, the majority all but forecloses subdivisions from bringing
constitutional challenges against their parent state, unnecessarily expanding Supreme
Court precedent. Second, the majority imposes a âplain statementâ rule on any statutory
claims subdivisions might bring. Third, it converts a Rule 12(b)(1) motion into a
Rule 12(b)(6) motion, concludes from the plaintiffsâ failure to fully brief Rule 12(b)(6)
issues that plaintiffs have no legislative history or other interpretive aids to present, and
then dismisses this action on the merits. These moves are unnecessary and incorrect.
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A. Constitutional Challenges
The Supreme Court has only expressly prohibited a political subdivision from
suing its parent state for violations of three constitutional provisions: (1) the Contracts
Clause, City of Trenton v. State of New Jersey, 262 U.S. 182, 187â88 (1923), (2) the Due Process Clause of the Fourteenth Amendment,id.,
and (3) the Equal Protection Clause of that amendment, Williams v. Mayor & City Council of Baltimore,289 U.S. 36, 40
(1933). In those cases, the Supreme Court did not articulate a test for determining which constitutional provisions a subdivision could rely on in a suit against its parent state. Instead, the Court broadly stated that political subdivisions âha[ve] no privileges or immunities under the Federal Constitution which [they] may invoke in opposition to the will of [their] creator.â Williams,289 U.S. at 40
.
But the Supreme Court has since backed away from that sweeping prohibition. In
Gomillion v. Lightfoot, the Supreme Court cautioned that Trenton and Williams should be
read only to reach âthe particular prohibitions of the Constitution considered in those
cases,â i.e., the Contracts, Due Process, and Equal Protection Clauses. 364 U.S. 339, 344(1960). It is true that limiting directive was dictum, as that case did not involve a political subdivision suing its parent state. But that dictum was made in an extensive discussion of those early twentieth century cases. And when the Supreme Court tells us how broadly or narrowly to interpret its holdings, we should listen. Gaylor v. United States,74 F.3d 214, 217
(10th Cir. 1996) (â[T]his court considers itself bound by Supreme Court dicta almost
as firmly as by the Courtâs outright holdings . . . .â).
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The majority ignores that limiting directive and instead adopts, with very little
analysis, the standard formulated in City of Hugoâa decision which effectively
foreclosed all constitutional challenges that a subdivision might bring against their parent
state. In that case, a panel of this court, over a strong dissent, extended the limitation on
constitutional challenges to the dormant Commerce Clause. See 656 F.3d at 1258;id. at 1265
(Matheson, J., dissenting). In doing so, the City of Hugo panel said that a political subdivision could not sue its parent state based on a âsubstantiveâ constitutional provisionâthat is, a provision that âprovide[s] substantive restraints on state actionâ and âconcerns rights that are properly characterized as guaranteed to individuals.âId. at 1262
(majority opinion). Rather, the City of Hugo panel held, a subdivision could only sue its parent state âto vindicate substantive federal statutory rights through the Supremacy Clause.âId.
(emphasis added); but seeid.
at 1270â71 (Matheson, J., dissenting) (concluding that subdivisions are not limited to pursuing only statutory claims). That conclusion rested primarily on two premises. First, that there was not âa 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.âId. at 1257
(majority opinion). And second, that the Supreme Court had apparently resurrected the sweeping prohibition against constitutional challenges from the early twentieth century. See Ysursa v. Pocatello Educ. Assân,555 U.S. 353, 363
(2009) (â[A] political subdivision . . . âhas no privileges or immunities under the federal constitution which it may invoke in opposition to the will of its creator.ââ (quoting Williams,289 U.S. at 40
)); City of Hugo,656 F.3d
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at 1259, 1263. Relying on those same points today, the majority adopts City of Hugoâs
total bar on constitutional challenges wholesale.
I question each of those premises. As for the first, just because the Supreme Court
has expressly prohibited political subdivisions from relying on certain constitutional
provisions does not mean the Court intends to prohibit reliance on all constitutional
provisions. See Edwards v. Vannoy, 141 S. Ct. 1547, 1581 (2021) (Kagan, J., dissenting)
(âThat the Court has not found a watershed rule since Teague does not mean it could or
would not in the future.â). Rather than prescribe broad general rules that may yield
unforeseen consequences when later applied in a different context, I believe the better,
more judicious, path is to rule narrowly on issues as they arise.
Relatedly, as regards the second premise, I am reluctant to totally prohibit a
subdivision from bringing a constitutional challenge against its parent state in the absence
of close examination of the issue by the Supreme Court. Ysursa, the case that allegedly
resurrected the total bar on constitutional challenges, was a case about union dues, not
about the rights of political subdivisions. The Court only invoked the sweeping dicta
from Trenton and Williams to reject an argument that the relationship between a state and
a political subdivision was like that between a state regulator and a private utility
company. Ysursa, 555 U.S. at 363(âThat analogy is misguided. A private corporation is subject to the governmentâs legal authority to regulate its conduct. A political subdivision, on the other hand, is a subordinate unit of government created by the State to carry out delegated governmental functions.â); see also City of Hugo,656 F.3d at 1269
n.7 (Matheson, J., dissenting) (âYsursa cites to Trenton and Williams, but only to
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establish that states may impose regulations on local governments, not that those
regulations are immune from constitutional scrutiny.â). As the majorityâs author put it in
a similar context, âI therefore doubtâ that in invoking such dicta only to reject an
analogy, âthe Supreme Court was laying down the law for all time in all contexts . . . .â
Utah Republican Party v. Cox, 892 F.3d 1066, 1111(10th Cir. 2018) (Tymkovich, C.J., concurring in part and dissenting in part). While we are âbound by Supreme Court dicta almost as firmly as by the Courtâs outright holdings . . . we generally do not follow dicta that has been completely assumed and unreasoned.âId.
at 1110â11 (quoting Gaylor,74 F.3d at 217
, and collecting cases) (emphasis added).
Ultimately, however, between the limiting directive from Gomillion and the
sweeping prohibition from Ysursa, it appears that we have dicta from the Supreme Court
pointing in two different directions. But given that the Supreme Court has neither
recently nor thoroughly considered the types of constitutional challenges a political
subdivision may bring against its parent state, I would follow the narrower dicta that
speaks to the sweep of the Courtâs holdings, rather than the dicta invoked to reject an
analogy in an inapposite context. Accordingly, I would adhere only to the Supreme
Courtâs (and our courtâs) actual holdings: political subdivisions cannot sue their parent
states based on violations of the Contracts Clause, the Due Process or Equal Protection
Clauses of the Fourteenth Amendment, or the dormant Commerce Clause.2
2
Although I disagree with how broadly City of Hugo spoke about constitutional
challenges, I see no need to disregard that caseâs actual holding.
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I see no need to determine whether the Guarantee Clause should be added to that
list. As the majority notes, the subdivision plaintiffs have all but abandoned their claim
under that provision of the Constitution. Maj. Op. at 31 (âFaced with near-certain failure
on their Guarantee Clause claim, the Plaintiffs place most of their eggs in the Enabling
Act basket on appeal.â). In the section of their supplemental en banc brief regarding
political subdivision âstanding,â the plaintiffs focus only on their Enabling Act claim. See
Aplt. Supp. Br. at 10 (âThe political subdivision plaintiffs have standing to pursue their
claims under the Enabling Act . . . .â); id. at 16 (âThe Enabling Act through the
Supremacy Clause controls.â). Accordingly, I would deem the plaintiffsâ constitutional
claims under the Guarantee Clause waived. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664,
679 (10th Cir. 1998) (âArguments inadequately briefed . . . are waived.â). And, more
consequentially, I would not use these specific plaintiffsâ lack of argument on their
Guarantee Clause claim as an occasion to slam the door on all constitutional claims
brought by all political subdivisions. Unless and until the Supreme Court announces such
a prohibition, I see no need to impose such a bar now.
B. Statutory Claims
Continuing its analysis, the majority substantially narrows a political subdivisionâs
ability to rely on a federal statute in a suit against its parent state. Adopting the standard
from City of Hugo, the majority holds that a federal statute must be âdirected at
protectingâ political subdivisions. And, in its view, a statute is only âdirected at
protectingâ political subdivisions if the statute specifically provides rights to political
subdivisions. Maj. Op. at 22 (â[W]e must determine whether Congress specifically
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intended to create a cause of action for political subdivisions.â). This requirement, the
majority insists, ensures that âCongress has specifically weighed the federalism
implications of a given statute and determined political subdivisions have a particular
interest in enforcing the law.â Id.at 24â25. In essence then, the majority adopts a âplain statementâ ruleâfamiliar from Supreme Court cases where the federal-state balance is at issue, see, e.g., United States v. Bass,404 U.S. 336, 349
(1971); Will v. Mich. Depât of State Police,491 U.S. 58, 65
(1989)âand holds that courts should find such a plain
statement only if it exists in the language of the statute.
To reach this conclusion however, the majority does substantial surgery to our
political subdivision limitation doctrine. This court has issued three key decisions
exploring the contours of the political subdivision limitation, each building upon the
other: Hous. Auth. of Kaw Tribe of Indians of Okla. v. City of Ponca City, 952 F.2d 1183,
1190(10th Cir. 1991) (Kaw Tribe), Branson Sch. Dist. RE-82 v. Romer,161 F.3d 619, 628
(10th Cir. 1998), and most recently, City of Hugo,656 F.3d at 1251
. In the majorityâs
telling, the analysis essentially begins and ends with City of Hugoâor, more precisely,
the majorityâs preferred parts of City of Hugo that support its conclusion. Indeed, in its
discussion of the relevant cases, the majority breezes by Kaw Tribe, writes that case out
of the subsequent development of the doctrine, and then, when it becomes clear that Kaw
Tribe conflicts with the rule the majority derives, sidesteps the case entirely by
concluding without support that plaintiffs âhad every opportunity to presentâ legislative
history and other interpretive aids but have failed to present any. Maj. Op. at 25â26 n.8.
But ducking Kaw Tribe like this and negating the plaintiffsâ opportunity to ever address
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Kaw Tribe in the context of a Rule 12(b)(6) motion will lead to consequences far beyond
this case. The Governor filed a Rule 12(b)(1) motion and the plaintiffs responded to that
motion. Nevertheless, the majority now penalizes plaintiffs for not also raising all
conceivable responses to a Rule 12(b)(6) motion that was never filed. In fact, the
Governor made no reference to Rule 12(b)(6) until supplemental briefing for rehearing en
banc.3
In Kaw Tribe, we held that a tribal housing authority established under Oklahoma
law could not sue a fellow political subdivision4 under the Fourteenth Amendment,
following the prohibition on such challenges established by the Supreme Court in
Trenton and Williams. 952 F.2d at 1190. At the same time, we held that the housing authority could maintain a suit under the Fair Housing Act (FHA), because the housing authority fell within the Supreme Courtâs broad interpretation of who was an âaggrieved personâ that could bring a suit under that act.Id.
at 1193â95. Importantly, we reached this conclusion even though the FHAâs definition of a âpersonâ did not include political subdivisions like the housing authority. In other words, the FHA did not specifically provide rights to political subdivisions.Id. at 1193
. Nevertheless, we held that â[i]t [wa]s
3
The majority unabashedly faults the plaintiffs for not briefing this issue to the
district court, on initial panel hearing, or to the en banc court, but the suggestion of
converting the Governorâs Rule 12(b)(1) motion to a Rule 12(b)(6) motion was not raised
until oral argument of the en banc case. See Oral Argument at 53:35, Kerr v. Polis
(No. 17-1192) (en banc). I would suggest this shift in theory comes too late to provide the
parties notice or an opportunity to be heard. Further, by this approach, we leave the
district court totally out of the equation.
4
That the housing authority brought a suit against a fellow subdivision rather than
its parent state did not impact the analysis. Kaw Tribe, 952 F.2d at 1189.
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clearâ from the Supreme Courtâs past rulings and the legislative history of the FHA âthat
Congress intended to summon all available forces to âvindicat[e] a policy that Congress
considered to be of the highest priority.ââ Id.at 1195 (quoting Trafficante v. Metropolitan Life Ins.,409 U.S. 205, 211
(1972)) (alteration in original).
The next case to develop the political subdivision limitation was Branson. At issue
there was a provision of the Colorado Enabling Act that âgranted more than 4.6 million
acres of school lands to the state of Colorado for the support of the âcommon schools.ââ
161 F.3d at 629. Making our own inferential leap from the statute, we recognized that the school district plaintiffs in that case were âthe direct political descendants of those 19th Century âcommon schools,ââ and thus ââessentiallyâ the beneficiaries of the federal trustâ established by the Colorado Enabling Act.Id.
We therefore held that the school districts could enforce the terms of that provision against the stateâs contrary actions via the Supremacy Clause, even though the Enabling Act did not specifically provide rights to the school districts as political subdivisions.Id.
In justifying that conclusion, we recognized that â[t]his understanding of political subdivision standing seems also to have been at work in this courtâs own decision [in Kaw Tribe].â Id; see alsoid. at 630
(âImplicit in our decision in Kaw Tribe is the view that the Fair Housing Act, as a federal statute, trumps any contradictory state law through the operation of the Supremacy Clause.â). We then made it clear: our political subdivision rule is âsupported by . . . Kaw Tribe.âId.
Fast forward to the next case, City of Hugo, which placed a new gloss on the
limitation. There, we said that âin each caseâ where a subdivision could sue its parent
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state, âthe source of substantive rights was a federal statute directed at protecting
political subdivisions . . . .â 656 F.3d at 1257(emphasis added).5 Perhaps confusingly, we also said that âcourts have allowed such suits only when Congress has enacted statutory law specifically providing rights to municipalities.âId.
(emphasis added). But for that statement to be consistent with Kaw Tribe and Branson, it must be construed broadly, either as part of a disjunctive test, or as an interchangeable label for the more flexible âdirected at protectingâ standard. At least one other member of this court agrees with this reading. See Kerr III,930 F.3d at 1200
(Holmes, J., dissenting) (âCity of Hugo requires that [subdivision plaintiffs] seek to enforce a federal statute directed at protecting or specifically providing rights to political subdivisions (sometimes referred to collectively herein as the âdirected at protectingâ requirement).â (emphasis added and citation omitted)). Indeed, City of Hugo itself indicated that a statute need not specifically provide rights to a subdivision: it pointed to Kaw Tribe as an illustrative example where a political subdivision âfell within the group of aggrieved parties to whom the Act contemplated providing rights,â not within the group which were specifically provided rights under the Act.656 F.3d at 1257
(emphasis added).
With that review of all the relevant cases in mind, the âdirected at protectingâ
requirement must have a broader and more flexible scope than the majority gives it,
5
For what it is worth, this standard addressing which statutory claims a political
subdivision may pursue against its parent state was unnecessary to the holding and
therefore dicta. As we pointed out in the panel decision below, âCity of Hugoâs analysis
focused on whether substantive constitutional rights can be the basis for political
subdivision standing and did not itself engage in any statutory analysis.â Kerr v. Polis,
930 F.3d 1190, 1196 (10th Cir. 2019) (Kerr III).
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particularly if the majority is relying on City of Hugo and the precedent it rests upon to
get there. But the majority does not want to follow this precedent; it wants to end this
case today. So, the majority converts a Rule 12(b)(1) motion into a Rule 12(b)(6) motion
upon rehearing en banc. It then concludes from plaintiffsâ failure to fully brief a response
to a Rule 12(b)(6) motion that plaintiffs must not have the kind of interpretive aids Kaw
Tribe allows us to consider.
I am puzzled how we can fault the plaintiffs at this juncture, as does the majority,
for failing to cite pertinent legislative history when the parties have not had the
opportunity to address that issue in the context of a Rule 12(b)(6) motion. To recall, and
as the majority fully explains, the focus of this litigation since its 2011 inception has been
to determine who has standing to bring an action to seek injunctive and declaratory relief
from TABOR. Maj. Op. at 7â10. The majority today concludes standing is intertwined
with the merits and if analyzed under the framework the majority now announces the
plaintiffs have failed to state a claim and the action is dismissed without prejudice under
Rule 12(b)(6).6 That is quite a leap from where the parties started and from the district
courtâs ruling presently under review. While we may believe we are capable of
functioning in a dual role to both identify and then resolve the issues identified, I for one
6
The majority also cites Holt v. United States, 46 F.3d 1000, 1003 (10th Cir.
1995) for the proposition that the en banc court is ârequiredâ to convert the Rule 12(b)(1)
motion into a Rule 12(b)(6) motion when jurisdictional questions are intertwined with the
merits. Maj. Op. at 27â28. This statement mischaracterizes Holtâs holding. In Holt, we
addressed what action was required by the district court and not by this court acting
unilaterally on appeal.
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continue to rely on the adversarial process to identify and refine the legal issues before
ruling on them.
I would harmonize all our precedent and give the âdirected at protectingâ
requirement the broad and flexible scope that our cases ascribe to it. Accordingly, in my
view, a statute may be âdirected at protectingâ political subdivisions even if the language
of the statute does not specifically provide rights to them, so long as there is some other
evidence that Congress contemplated protecting political subdivisions. See Kaw Tribe,
952 F.2d at 1194(noting the Congressional theory behind the Fair Housing Actâs broad enforcement provision was that even âthose who were not the direct objects of discrimination had an interest in ensuring fair housing, as they too sufferedâ (quoting Trafficante,409 U.S. at 210
)). Cf. United States v. Alabama,791 F.2d 1450, 1456
(11th Cir. 1986) (âNothing in Title VI or its legislative history suggests that Congress conceived of a state instrumentality as a âpersonâ with rights under this statute.â (emphasis added)). Contrary to the majorityâs contention, federalism concerns do not require us to look only at the language of a statute and nothing more to determine whether Congress has spoken clearly on an issue affecting the federal state balance. One of the cases the majority cites for its âplain statement ruleâ explicitly refers to âstatutory structureâ and âlegislative historyâ as relevant to the âplain statementâ inquiry. Nixon v. Mo. Mun. League,541 U.S. 125, 141
(2004). Contrary to this precedent, the majority
looks only at the language of the statute to determine whether Congress has spoken
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clearly on an issue affecting the federal-state balance because plaintiffs âhave failed to
present any pertinent legislative history.â Maj. Op. at 25â26 n.8.7
This more flexible understanding of the âdirected at protectingâ requirement falls
between two points: it is less demanding than the majorityâs âspecifically providing rights
toâ formulation but requires more than the subdivision plaintiffsâ requested zone-of-
interests test, which merely asks whether the plaintiff âis arguably within the zone of
interests to be protected . . . by the statute . . . in question.â Assân of Data Processing
Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970). In charting out the middle ground, a
more flexible understanding of âdirected at protectingâ remains faithful to our precedent,
while recognizing the federalism concerns that animate this entire doctrine.
The district courtâs analysis in this case focused on the âspecifically providing
rights toâ formulation from City of Hugo, which, as should be clear by now, is
simultaneously too narrow and inconsistent with existing circuit precedent. See Kerr v.
Hickenlooper, 259 F. Supp. 3d 1178, 1191 (D. Colo. 2017) (âSection 4 [of the Enabling
Act] does not expressly provide for whom the ârepublican in formâ requirement is
designed.â). Accordingly, I would reverse the district courtâs decision and remand for
new briefing and consideration of the more flexible âdirected at protectingâ standard.
After all, I continue to believe, as I did in the panel majority, that â[e]stablishing who was
intended to benefit from the Enabling Actâs ârepublican in formâ requirement necessarily
7
Strangely, the majority holds this omission against the plaintiffs while excusing
the Governorâs omission of any argument to the district court that plaintiffsâ complaint
fails to state a claim.
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begs the question of what a âRepublican Form of Governmentâ is.â Kerr III, 930 F.3d
at 1196 (emphasis in original). The determination of that merits question more
appropriately belongs with the district courtânot this court.
III
Which brings me to the majorityâs resolution of this case. I believe it is improper
to proceed to consider the merits of this case. The only motion that has been filed in this
case is a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, and it is a
ruling on that motion that we are reviewing. No matter, says the majority. We can simply
convert the Rule 12(b)(1) dismissal into a Rule 12(b)(6) dismissal and dismiss the
complaint on the merits. Not only does this move violate the cross-appeal rule, a âfirmly
entrenchedâ rule of appellate practice, Greenlaw v. United States, 554 U.S. 237, 245
(2008), it more importantly flouts our role as a court of review.
It is well-settled that under the cross-appeal rule, âan appellee who does not cross-
appeal may not âattack the decree with a view either to enlarging his own rights
thereunder or of lessening the rights of his adversary.ââ Jennings, 574 U.S. at 276
(quoting United States v. Am. Ry. Express Co., 265 U.S. 425, 435 (1924)). The cross-
appeal rule clearly applies in this case.8 Regardless of whether the dismissal is converted
8
To state the obvious, Judge Bacharach and I agree on this point. But I find no
support in any similar case from this circuit where we have adopted the hybrid approach
that he and the majority take: to momentarily set aside the cross-appeal rule and convert a
Rule 12(b)(1) motion to dismiss into a Rule 12(b)(6) motion to dismiss, then dismiss
without prejudice. The cases cited in support of dismissal under Rule 12(b)(6) without
prejudice are limited to claims that are premature, unexhausted, or unripe.
Further, we should not now insert Rule 41(b) into the conversation as it has no
applicability here. Nor, for that matter, has any party argued that it applies. Rule 41(b)
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from one without prejudice to one with prejudice, as the Chief Judgeâs concurrence
proposes, the majority opinion and Judge Bacharachâs concurrence still contravene the
cross-appeal rule by altering the respective rights of both the plaintiffs and the Governor.
The plaintiffsâ rights are lessened, while the Governorâs rights are increased. If this
approach complies with the cross-appeal rule, the rule applied here can only be described
as âcross-appeal lite.â It is not a procedure in full compliance with the cross-appeal rule,
but rather some watered-down version of it.
As Judge Bacharach correctly notes, converting a dismissal without prejudice into
one with prejudice would enlarge the district courtâs judgment.9 It would lessen the rights
states in full: âIf the plaintiff fails to prosecute or to comply with these rules or a court
order, a defendant may move to dismiss the action or any claim against it. Unless the
dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal
not under this ruleâexcept one for lack of jurisdiction, improper venue, or failure to join
a party under Rule 19âoperates as an adjudication on the merits.â (emphasis added).
We are not here on a Rule 41(b) motion, nor does it apply. We need not now
provide a default label for the district courtâs ruling. The district court specified that its
dismissal was for lack of subject matter jurisdiction, an exception to Rule 41(b)âs
presumption of a merits adjudication. As stated by then-Judge Kavanaugh, âa district
court has discretion to dismiss a complaint without prejudice.â Rollins v. Wackenhut
Servs., Inc., 703 F.3d 122, 132(D.C. Cir. 2012) (Kavanaugh, J., concurring) (emphasis added). Nor does Paganis v. Blonstein,3 F.3d 1067
(7th Cir. 1993) support our now relabeling the district courtâs ruling. In Paganis the court cited Rule 41(b) for the unremarkable holding that the district courtâs dismissal of plaintiffâs action under Rule 12(b)(6) is a dismissal with prejudice even though the district court did not expressly include that phrase.Id. at 1071
. Paganis does not involve a Rule 12(b)(1)
dismissal or provide support for our changing the district courtâs Rule 12(b)(1) dismissal
to a Rule 12(b)(6) dismissal without prejudice.
9
As the Chief Judgeâs concurrence recognizes, a Rule 12(b)(1) dismissal is
typically without prejudice and allows a party to return to the same court and attempt to
cure the jurisdictional defect. Semtek Intâl Inc. v. Lockheed Martin Corp., 531 U.S. 497,
505 (2001) (âThe primary meaning of âdismissal without prejudice,â we think, is
dismissal without barring the plaintiff from returning later, to the same court, with the
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of the political subdivisions, who would be barred from bringing these claims in federal
court in Colorado, and it would increase the rights of the Governor, who would obtain a
windfall ruling on the merits that he did not receive below nor seek on appeal. Because
the Governor did not file a cross-appeal, we are prohibited from taking this action. June
v. Union Carbide Corp., 577 F.3d 1234, 1248 n.8 (10th Cir. 2009) (â[The cross-appeal]
rule . . . preclude[s] an appellate court, in the absence of a cross-appeal, from changing a
dismissal without prejudice to a dismissal with prejudice.â).
The Chief Judgeâs concurrence dismisses the cross-appeal rule, saying it simply
does not apply in this case. But its reasons for doing so are unconvincing. To start, âin
more than two centuries of repeatedly endorsing the cross-appeal requirement, not a
single one of [the Supreme Courtâs] holdings has ever recognized an exception to the
rule.â Greenlaw, 554 U.S. at 245(quoting El Paso Nat. Gas Co. v. Neztsosie,526 U.S. 473, 480
(1999)). The only Supreme Court case the concurrence relies onâMorrison v. Natâl Australia Bank Ltd.,561 U.S. 247, 254
(2010)âdid not discuss the cross-appeal rule at all. Additionally, the Seventh Circuit cases the concurrence invokes appear to be unique to their specific immigration context. See Matushkina v. Nielsen,877 F.3d 289, 297
(7th Cir. 2017); Morfin v. Tillerson,851 F.3d 710, 714
(7th Cir. 2017); Hazama v. same underlying claim.â); Brereton v. Bountiful City Corp.,434 F.3d 1213, 1216
(10th Cir. 2006). In contrast, a Rule 12(b)(6) dismissal is typically with prejudice, unless otherwise noted, because such a dismissal adjudicates a plaintiffâs claims on the merits and determines that the plaintiff fails to state a claim upon which relief can be granted. Brereton,434 F.3d at 1219
; see Semtek,531 U.S. at 506
(â[U]nlike a dismissal âwithout
prejudice,â the dismissal in the present case [designated as âon the merits and with
prejudiceâ] barred refiling of the same claim in the [same court].â (alterations added)).
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Tillerson, 851 F.3d 706, 710(7th Cir. 2017). Those cases dealt with consular non- reviewability in the immigration context and converted dismissals for lack of standing into dismissals on the merits. In Matushkinaâthe only case to actually discuss and analyze the cross-appeal ruleâthe Seventh Circuit stated that â[t]he general [cross- appeal] rule does not apply . . . where a jurisdictional dismissal effectively bars relief on the merits in any judicial forum.â877 F.3d at 297
. In my view, that general statement is confined to the circumstances of that case, where the line between standing and consular non-reviewability is ârather fineâ and consular non-reviewability effectively bars relief on the merits in any judicial forum.Id. at 294
(âConsular nonreviewability is the general
rule that decisions to issue or withhold a visa are not reviewable in court unless Congress
says otherwise.â (internal quotations omitted)). Here, in contrast, standing and the
political subdivision limitation are totally distinct, and the subdivision limitation, at least
in theory, does not effectively bar relief in any judicial forum.
At any rate, in a different line of cases, the Seventh Circuit has held fast to the
cross-appeal rule. Most notably, in Lee v. City of Chicago, 330 F.3d 456, 470â71
(7th Cir. 2003), the Seventh Circuit reversed the dismissal of a plaintiffâs claims for lack
of standing and remanded to the district court to consider the claims on the merits. In
doing so, the Seventh Circuit rejected the defendantâs argument that the court should
proceed to evaluate the merits of the plaintiffâs claim in the interests of judicial economy
and efficiency. Even though the Seventh Circuit agreed with the defendant that âit [wa]s
likelyâ the plaintiff would be unable to state a claim, the court nevertheless considered
itself âforeclosed from resolving th[at] issue hereâ because âthe [defendant] s[ought] to
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enlarge its rights and supplement the district courtâs decree with a ruling on the merits
that was not reached below.â Id.at 470â71. The Seventh Circuit held that â[the defendant] c[ould not] do this without filing a cross-appeal.âId. at 471
; see also Am. Bottom Conservancy v. U.S. Army Corps of Engârs,650 F.3d 652, 660
(7th Cir. 2011) (âAn appellee who wants, not that the judgment of the district court be affirmed on an alternative ground, but that the judgment be changed, in this case from a dismissal without to a dismissal with prejudice, must file a cross-appeal.â); Alejo v. Heller,328 F.3d 930, 937
(7th Cir. 2003) (â[Defendant] seeks to enlarge his rights and supplement
the district courtâs decree with a ruling on the merits that was not reached below. He
cannot do this without filing a cross-appeal.â).
Other circuits have followed the same path by affording respect to the cross-appeal
rule. See, e.g., Delgado-Caraballo v. Hosp. Pavia Hato Rey, Inc., 889 F.3d 30, 39 n.15 (1st Cir. 2018) (âDismissing plaintiffsâ local-law claims on statute-of-limitations grounds would be a dismissal with (rather than without) prejudiceâa result that would lessen their rights. So [without a cross-appeal] [the defendantsâ] argument is not properly before us.â (citations omitted)); Dodd v. Hood River Cnty.,59 F.3d 852, 864
(9th Cir. 1995)
(âAlthough the parties fully briefed the merits before the district court and, on appeal,
have expressed a willingness for us to decide this issue, we will not consider [it]. The
District Courtâs dismissal was grounded on its own lack of jurisdiction and was without
prejudice. The [defendants], having not filed a cross-appeal, may urge any ground that
would result in an affirmance of the judgment below in their favor, but may not obtain
from us relief more extensive than [they] received from the district court.â). Cf.
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Firefightersâ Ret. Sys. v. Grant Thornton, L.L.P., 894 F.3d 665, 672 (5th Cir. 2018) (âThe
district court dismissed Plaintiffsâ claims without prejudice, but a dismissal without
prejudice may be converted into a dismissal with prejudice when a defendant files a
cross-appeal, as [the defendant] has done here.â).
While conversion of a dismissal without prejudice into one with prejudice clearly
defies the cross-appeal rule, even the middle path now charted by the majority and Judge
Bacharachâs concurrence implicates the rule. The cross-appeal rule does not apply only to
prevent enlargement of judgments in favor of the appelleeâit also applies to prevent
lessening the rights of the appellant. See Jennings, 574 U.S. at 276. Conveniently, neither
the majority nor Judge Bacharach address this aspect of the rule. Indeed, the majority
opinion does not mention the cross-appeal rule at all. Courts take a broad view of how an
appellantâs rights could be lessened on appeal. A panel of this court has noted, in an
unpublished decision, that even increasing the amount of a bond an appellant posted in
connection with a temporary restraining order would require a cross appeal. See
ClearOne Commcnâs, Inc. v. Bowers, 509 F. Appâx 798, 802(10th Cir. 2013) (unpub.) (Gorsuch, J.). The Seventh Circuit has said that upending a district courtâs preliminary legal determination that favored the eventual appellant would require a cross-appeal because replacing the precedent could cause the appellant to face a steeper burden in future, similar cases. See EEOC v. Chicago Club,86 F.3d 1423, 1432
(7th Cir. 1996).
The majorityâs approach clearly lessens the plaintiffsâ rights and increases their
burden in any subsequent litigation. If the majority held that the district court erred in
determining that political subdivision standing was a jurisdictional bar, stopped its
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analysis there, and remanded to the district court for reconsideration, the plaintiffs would
be left at least with a live case and the opportunity to brief these merits issues to the
district court. By going further than necessary, the majority deprives the plaintiffs of all
the benefits of a pending, open case and leaves them and others like them with precedent
that makes it almost impossible to bring a claim under the Guarantee Clause or the
Colorado Enabling Act.
Judge Bacharach suggests that the Chief Judgeâs approach would âstymie the
political subdivisions, barring them from refiling the suit and presenting new evidence of
legislative history.â Bacharach Op. at 3â4. Yet they fare no better under the approach
Judge Bacharach endorses because the majority opinion creates an all but insurmountable
burden to their prevailing on the merits.10 In fact, after authoring the same merits analysis
which Judge Bacharach joins, the Chief Judge notes in concurrence that expanding the
dismissal to one with prejudice would have the same practical effect as leaving the
dismissal without prejudice. Chief Judge Tymkovichâs Concurrence at 18. If expanding
the judgment makes no practical difference, then either both courses violate the cross-
appeal rule or neither do. Judge Bacharach mischaracterizes the cross-appeal rule as
requiring only that we do not expand the âdispositionâ of the case. Bacharach Op. at 11.
But that view focuses only on the ultimate judgment while ignoring the substantive legal
pronouncements that precede it and will bind the parties in any future litigation.
Moreover, his opinion reads too much into Jennings, a habeas case with key differences
10
To be clear, I would in no way restrict the evidence plaintiffs could present
should they refile an action.
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from this one. There, the alternative argument was actually presented to the district court.
See Jennings, 574 U.S. at 275. The supposed alternative reasoning for affirmance here
was not.
Ultimately, though, how closely we adhere to the cross-appeal rule runs a close
second to my larger objection to the majorityâs decision to usurp the district courtâs
authority and become the first court to consider this case on the merits. We are âa court of
review, not of first view.â Childers v. Crow, 1 F.4th 792, 801(10th Cir. 2021) (quoting Cutter v. Wilkinson,544 U.S. 709
, 719 n.4 (2005)); Reid v. Oklahoma,101 F.3d 628
,
630â31 (10th Cir. 1996). It should not be a novel concept to acknowledge that the role of
an appellate court is to review the rulings of district courts, not to create new issues
neither raised nor addressed by the district court or the parties on appeal.
We are here in this en banc proceeding because the parties and members of this
court have acknowledged that our political subdivision limitation doctrine is unclear. See
Kerr III, 930 F.3d at 1195â96 (describing the partiesâ differing views of which standard
applied); id. at 1196 n.6 (noting âcredible concerns about [City of Hugoâs] rule being
drawn from our political subdivision standing precedentâ); id. at 1206 (Holmes, J.,
dissenting) (â[T]here may be conceivable arguments for reevaluating or cabining our
political-subdivision standing doctrine.â). Now that we have determined the limitation
doctrine is not jurisdictional and have settled on a standard, we should stop there and
remand to the district court to consider the case on the merits. Both Branson and City of
Hugo were decided on motions for summary judgment âwith access to considerably more
information than entailed by the Rule 12(b)(1) motion here.â Id. at 1199 n.10 (majority
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opinion). And the district court here acknowledged that it reached its conclusion
regarding the Enabling Act âbased on the present record,â Kerr, 259 F. Supp. 3d at 1190â
91, which notably, was developed in a jurisdictional context under a different
precedential landscape. I therefore disagree with the majority that a remand would be an
exercise in futility. Again, I maintain that â[e]stablishing who was intended to benefit
from the Enabling Actâs ârepublican in formâ requirement necessarily begs the question
of what a âRepublican Form of Governmentâ is.â Kerr III, 930 F.3d at 1196 (emphasis in
original). To date, no court has answered that question. This court should afford the
district court the opportunity to address the issue in the first instance.
IV
As regards the political question doctrine, this is another issue not addressed by
the district court.11 I disagree with the Chief Judgeâs suggestion of resolving this case on
political question grounds. For one, as stated above, I conclude the plaintiffs waived their
claims under the Guarantee Clause of the Constitution, so it is unnecessary to determine
whether claims under that provision are non-justiciable. For another, the whole purpose
of this en banc proceeding was to clarify the political subdivision âstandingâ doctrine, not
reconsider a prior panelâs conclusion that the plaintiffsâ claims are justiciable. See Kerr v.
11
âA well known riddle asks: âWhere does an eight-hundred pound gorilla sleep?â
The response is: âAnywhere it wants.â The judicial application of this rule would be:
âWhen will an appellate court consider a new issue?â The response is: âAny time it
wants.ââ Robert J. Martineau, Considering New Issues on Appeal: The General Rule and
the Gorilla Rule, 40 Vand. L. Rev. 1023, 1023 n.a (1987) (internal citation omitted).
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Hickenlooper, 744 F.3d 1156, 1172â1181 (10th Cir. 2014) (Kerr I).12 Disposing of this
case on political question grounds would leave the subdivision limitation doctrine in
disarray, kicking the can down the road for another day.
12
And for what it is worth, I stand by the unanimous panel opinion in Kerr I that I
joined. In seeking to overturn that decisionâs conclusion on the political question
doctrine, the concurrence literally re-writes the Supreme Courtâs decision in Pacific
States to say what the concurrence wants it to say. See Chief Judge Tymkovichâs
Concurrence at 3â5. Citing only to a law review article and a student note opining on
what Pacific States was âactuallyâ about, the concurrence says that Pacific States dealt
with the exact situation as this case and therefore that its declaration that all Guarantee
Clause challenges are non-justiciable applies. But as we concluded in Kerr I, the
challenge in Pacific States involved a âwholesale attack[] on the validity of a stateâs
government rather than, as before us, a challenge to a single provision of a state
constitution.â Kerr I, 744 F.3d at 1173. Even if Chief Justice White (the author of Pacific States) âfilled his opinion with rhetorical hyperbole,â Hans A. Linde, Who is Responsible for Republican Government?,65 U. Colo. L. Rev. 709
, 714 (1994), cited with approval in Concurrence at 4, that does not change what his opinion for the Court actually said. Pac. States Tel. & Tel. Co. v. State of Oregon,223 U.S. 118, 150
(1912) (â[T]he assault which the contention here advanced makes is not on the tax as a tax, but on the state as a state.â). Importantly, Pacific States cast itself under the precedential force of Luther v. Borden,48 U.S. (7 How.) 1
(1849), which it viewed as âthe leading and absolutely controlling case.â Pacific States,223 U.S. at 143
. That case also involved a âwholesale attack[] on the validity of a stateâs governmentâ because it asked the Supreme Court âto resolve a dispute that would have required it to determine which of two putative governments legitimately controlled Rhode Island at the time.â Kerr I,744 F.3d at 1173
. Accordingly, I believe those cases only announced a broad non-justiciability rule for the extreme circumstances considered there. They did not imply that all Guarantee Clause claims of all kinds are non-justiciable, only that â[s]ome questions raised under the Guarantee Clause are nonjusticiable.âId.
at 1176 (quoting New York v. United States,505 U.S. 144, 185
(1992)) (emphasis added); see Schroder v. Bush,263 F.3d 1169
, 1173â74 (10th Cir. 2001) (âWhen deciding whether issues present political questions, courts must make a âdiscriminating inquiry into the precise facts and posture of the particular case,â for it resists âresolution by any semantic cataloguing.â As âthere is no blanket rule,â application of the doctrine must be made on a âcase-by-caseâ basis.â (quoting Baker v. Carr,369 U.S. 186, 211, 215, 217
(1962)).
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Most importantly, the political question issue was not âpresentedâ to us in any
meaningful sense of the word. At no point in the instant proceedings on review did the
Governor raise the political question doctrine. He certainly had the opportunity to do so.13
Normally, âwhen a party chooses not to pursue a legal theory potentially available to it,
we generally take the view that it is âinappropriateâ to pursue that theory in our opinions.â
Hydro Res., Inc. v. EPA, 608 F.3d 1131, 1146 n.10 (10th Cir. 2010) (en banc) (Gorsuch, J.). That is because âwe rely on the parties to frame the issues for decisionâ and our role is to be the âneutral arbiter of matters the parties present.â Greenlaw,554 U.S. at 243
. But apparently party presentation no longer matters here. Everything is on the tableâperhaps due to views previously expressed. See Kerr v. Hickenlooper,759 F.3d 1186, 1186
(10th Cir. 2014) (Hartz, J., dissenting from denial of rehearing en banc) (â[T]he Guarantee Clause claim is nonjusticiable as a political question.â);id. at 1191
(Tymkovich, J., dissenting from denial of rehearing en banc) (âGuarantee Clause
challenges to statewide direct democracy provisions, like TABOR, are non-justiciable.â).
That is a mistake.
Our adversarial system endows the parties with the opportunityâand
dutyâto craft their own legal theories for relief in the district court. It is the
significant but limited job of our appellate system to correct errors made by
13
The Kerr II panel, after reversing Kerr Iâs standing determination for the
legislator plaintiffs, declined to reconsider its conclusion on the political question
doctrine. But in remanding to the district court to consider whether any plaintiff had
standing, the Kerr II panel instructed that the district court âmay . . . consider [whether
any] other justiciability hurdlesâ remained if it found that any plaintiff had standing. Kerr
v. Hickenlooper, 824 F.3d 1207, 1217 (10th Cir. 2016) (Kerr II). On remand, the
Governor did not present any argument on such justiciability hurdles like the political
question theory. He argued only that the non-legislator plaintiffs lacked standingâthe
issue on appeal in Kerr III and this en banc proceeding.
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the district court in assessing the legal theories presented to it, not to serve
as a second-shot forum . . . where secondary, back-up theories may be
mounted for the first time.
Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130 (10th Cir. 2011) (Gorsuch, J.)
(internal quotations omitted).
What is more, in the nearly one hundred and fifty pages of briefing filed in this
appeal and en banc rehearing, there is only a single page from the Governor and a page
and a half in response from the plaintiffs on the political question doctrine, mostly
quibbling about whether a comment in Rucho v. Common Cause, 139 S. Ct. 2484, 2506(2019), was dicta or not. See Gov. Supp. Br. at 16; Aplt. Supp. Resp. Br. at 18â19; see also Gov. Supp. Reply Br. at 9â10 (reiterating the same arguments).14 That is hardly the adversarial process at work. Although we must ensure ourselves of our own jurisdiction, âappellate courts do not sit as self-directed boards of legal inquiry and research.â Natâl Aeronautics & Space Admin. v. Nelson,562 U.S. 134
, 147 n.10 (2011) (quoting Carducci v. Regan,714 F.2d 171, 177
(D.C. Cir. 1983) (Scalia, J.)). â[W]e depend on the adversarial process to test the issues for our decision.â Aposhian v. Wilkinson,989 F.3d 890, 897
(10th Cir. 2021) (Tymkovich, C.J., dissenting from denial of rehearing en banc)
14
Of note, our en banc briefing order focused only on the political subdivision
âstandingâ doctrine, not the political question doctrine. Although the order was the
product of the en banc court, no member of the en banc court identified the political
question doctrine as relevant to this appeal or requiring supplemental briefing. Instead,
our order asked the parties to file supplemental briefs answering two questions (with
three sub-questions each) focused on subdivision âstandingâ in no more than twenty
pages. The Governorâs choice to toss in a single page regarding the political question
doctrine short-circuited the adversarial process. It forced the plaintiffs to briefly respond
in addition to answering all the other questions from the en banc order.
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(internal quotations omitted). To bypass a fully developed adversarial process and rule
based only on our own view of the law risks an erroneous result, particularly in this case,
given the â[d]eeply rooted ambiguity in the nature and justification of the political
question doctrine.â Schroder, 263 F.3d at 1171 n.1.
To respect the partiesâ control of their own case and to ensure that any decision we
render is the product of adversarial refinement, I would confine our analysis to the issues
the parties have focused on, not issues newly raised by the court sua sponte.
V
I concur in ruling that the district court erred in dismissing this case under
Rule 12(b)(1) for lack of subject matter jurisdiction. I respectfully dissent from our
converting the Governorâs motion to a Rule 12(b)(6) motion and dismissing this case on
the merits. I also would not convert the dismissal without prejudice into one with
prejudice, nor would I sua sponte raise the political question doctrine. I would reverse the
district courtâs Rule 12(b)(1) ruling and remand for further proceedings.
29