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Plaintiffs-Appellees' Petition for Rehearing, Filed Appellate Case: 12-1445 Document: 01019653881 Date Filed: 07/08/2016 Page: 1 CASE NO. 12-1445 IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT ANDY KERR,Colorado State Representative,et al., Plaintiffs-Appellees, v. JOHN HICKENLOOPER, Governor ofColorado,in his official capacity, Defendant-Appellant. On Remand from theUnited States Supreme Court Case No. 14-460 PLAINTIFFS-APPELLEES’PETITION FOR PANEL REHEARING LINO S. LIPINSKY de ORLOV MICHAELF. FEELEY DAVID E. SKAGGS SARAH M. CLARK Dentons US LLP CARRIE E. JOHNSON 1400 Wewatta Street,Suite 700 Brownstein Hyatt Farber Schreck LLP Denver,Colorado 80202 410 17thStreet,Suite 2200 (303)634-4000 Denver,Colorado 80202-4437 (303)223-1100 HERBERT LAWRENCE FENSTER Covington & BurlingLLP MICHAELL. BENDER 850 10thStreet NW Perkins Coie LLP Washington,DC 20001 1900 SixteenthStreet,Suite 1400 (202)662-5381 Denver,Colorado 80202 (303)291-2366 JOHN A. HERRICK 2715 Blake Street,No. 9 Denver,Colorado 80205 (720)987-3122 Attorneys for Petitioners Appellate Case: 12-1445 Document: 01019653881 Date Filed: 07/08/2016 Page: 2 TABLE OF CONTENTS I. RULE 40 STATEMENT....................................................................................1 II. BACKGROUND ................................................................................................1 III. REASONS FOR PANELREHEARING...........................................................3 A. Arizona Did Not Hold That an Entire Legislature Is Required to EstablishLegislator Standing...................................................................3 B. To Require theEntire Legislature as PlaintiffIgnores the Political Realities Present in BothColeman and Arizona,or in Any Case Involvinga Legislative Body. .................................................6 C. An Institutional Injury Does Not Carry a Requirement for the Entire Institution to Be a Plaintiff............................................................8 D. TheLegislator-PlaintiffsHave StandingUnder theColorado Statehood EnablingAct..........................................................................10 IV. CONCLUSION.................................................................................................11 i Appellate Case: 12-1445 Document: 01019653881 Date Filed: 07/08/2016 Page: 3 TABLE OF AUTHORITIES Page(s) Cases Arizona State Legislature v. Arizona Independent Redistricting Commission, 135 S. Ct. 2652 (2015)....................................................................................passim Branson v. Romer, 958 F. Supp. 1501 (D. Colo. 1997)(“Branson I”)..........................................10,11 Branson v. Romer, 161 F.3d 619(10thCir. 1998)(“Branson II”).................................................10,11 Clinton v. City of New York, 524 U.S. 417 (1998).................................................................................................9 Coleman v. Miller, 307 U.S. 433 (1939)........................................................................................passim U.S.House of Representatives v. Burwell, 130 F. Supp. 3d 53 (D.D.C. 2016)...........................................................................7 Kerr v. Hickenlooper, 744 F.3d 1156 (10thCir. 2014)(“Kerr I”)....................................................4,6,10 Kerr v. Hickenlooper, No. 12-445,---F.3d ---,2016 WL3126203 (10thCir. June 3,2016) (“Kerr II”)........................................................................................................1,6,8 Raines v. Byrd, 521 U.S. 811 (1997).............................................................................................3,4 Statutes Colorado EnablingAct of1875,18 Stat. 474...................................................2,10,11 Constitutional Provisions U.S. Const. art. VI,§2..................................................................................................2 U.S. Constitution,Guarantee Clause ........................................................................4,5 ii Appellate Case: 12-1445 Document: 01019653881 Date Filed: 07/08/2016 Page: 4 Rules Federal Rules ofAppellate Procedure Rule 40.....................................................................................................................1 10thCir. R. 40.1(A)......................................................................................................1 Other Authorities Journal oftheArizona Senate,May 2,2012,p. 422,available at www.azsenate.gov/SenateJournals/2012%20Senate%20Journal.pdf.....................7 Journal oftheArizona House,May 2,2012,p. 431. House Floor Session,May 2,2012,part 2, http://azleg.granicus.com/MediaPlayer.php?view_id=13&clip_id=11 176............................................................................................................................7 iii Appellate Case: 12-1445 Document: 01019653881 Date Filed: 07/08/2016 Page: 5 I. RULE 40 STATEMENT Petitioners,pursuant to Rule 40,Federal Rules ofAppellate Procedure, respectfully petition theCourt for a panel rehearing. As more fully set forthbelow, Petitioners submit that theCourt hasmisconstrued theSupreme Court’sdecision in Arizona State Legislature v. Arizona Independent Redistricting Commission,135 S. Ct. 2652 (2015)(“Arizona”)withrespect to therequirements to establish legislator standing. In its decision ofJune 3,2016,theCourt read Arizona to say that standingrequires suit by theentire legislature and so felt obliged to deny standingto thelegislator-plaintiffsin this case. Kerr v. Hickenlooper,No. 12-445, ---F.3d ---,2016 WL3126203 at *6(10thCir. June 3,2016)(“Kerr II”).Thus, theproper treatment oflegislator standingis ofcentral significance to this case. This petition is not routinely filed. See 10thCir. R. 40.1(A). II. BACKGROUND Since its filingin May,2011,this litigation has been thesubject ofextended proceedingslimited to thethreshold questions ofstandingand justiciability raised by theDefendant’sMotion to Dismiss. Petitioners assert that theso-called Colorado Taxpayers Bill ofRights (“TABOR”)violates therequirement that Colorado maintain a “Republican Form ofGovernment,”a requirement set forth bothin theGuarantee Clause oftheU.S. Constitution and separately in the 1 Appellate Case: 12-1445 Document: 01019653881 Date Filed: 07/08/2016 Page: 6 Colorado Statehood EnablingAct. Colorado EnablingAct of1875,18 Stat. 474 (the“EnablingAct”).(Under theSupremacy Clause,U.S. Const. art. VI,§2,it is axiomatic that TABOR must yield to thesuperior provisions oftheEnablingAct.) Theessence ofthis claim is that TABOR hasremoved suchfundamental fiscal powers from theColorado legislature thatthestate’sgovernment is no longer republican in form. On July 30,2012,thedistrict court denied theDefendant’sMotion to Dismiss,findingthatthelegislator-plaintiffshad standingand thattheir Guarantee Clause claims were justiciable. TheDefendant then obtained certification from the district court and this Court to pursue this interlocutory appeal. This Court initially affirmed thedistrict court rulingon bothissues. After beingdenied a rehearingen banc,theDefendant petitioned theSupreme Court for certiorari review. A year ago,theSupreme Court issued a brieforder grantingthe petition,vacatingthis Court’sprior judgment,and remandingthecase for reconsideration in lightoftheSupreme Court’sdecision in Arizona. Relyingon its readingofthestandinganalysis in Arizona,this Court determined that only theentire Colorado Legislature would have standingto assert theinjury alleged in this case and that,therefore,theindividual legislator-plaintiffs lack standingto bringtheir claims. RejectingtheDefendant’srequest for 2 Appellate Case: 12-1445 Document: 01019653881 Date Filed: 07/08/2016 Page: 7 disposition on otherjurisdictional questions,this Court then remanded thecase to thedistrict court for consideration ofthestandingofthenon-legislator plaintiffs. III. REASONS FOR PANEL REHEARING A. Arizona Did Not Hold That an Entire Legislature Is Required to Establish Legislator Standing. Thestandinganalysis in Arizona did determine that thepresence ofthe Arizona Legislature as plaintiffwas sufficient to establishstanding. Thepresence oftheentire Arizona Legislature as plaintiffwas a given and,therefore,was simply not addressed as key to standing. Nowhere in Arizona does theSupreme Court overturn thecritical 76-year old precedent1 on legislator standingand establisha rule thatstate legislators possess standingonly whentheir entire state legislature bringsa case. Moreover,the Arizona Court did not rule out standingfor less thana full legislative body. Althoughthe Arizona Court discussed Raines v. Byrd,521 U.S. 811 (1997)(“Raines”),Arizona did not treat Raines as havinga bearingon the portion ofalegislative body needed for standing.2 1 Coleman v. Miller,307 U.S. 433 (1939)(“Coleman”). 2 The Arizona Court read Raines to make an “authorizingvote”of“some importance.” Arizona,135 S. Ct. at 2665. Ifthe Arizona Court meant to treat Raines to make sucha vote essential,it could have said so. Id. (citingRaines,521 U.S. at 829-30)(emphasis added). 3 Appellate Case: 12-1445 Document: 01019653881 Date Filed: 07/08/2016 Page: 8 As withthediscussion ofRaines in Arizona,this Court noted in its first decision in this case,Kerr v. Hickenlooper,744 F.3d 1156,1168 (10thCir. 2014) (“Kerr I”),that multiple factors at work in Raines led to denial ofstanding,most significantly a federal separation ofpowers dimension and theavailability ofa political remedy to fix theproblem ofwhichthelegislators there had complained. Raines,521 U.S. at 819-20. Far from relyingon Raines’attention
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