Hall v. Moreno

• Decision Date: 27 February 2012
• Docket Number: No. 11SC842.,11SC842.
• Citation: 2012 CO 14,270 P.3d 961
• Parties: Kathryn H. HALL; Danny E. Stroud; Dick R. Murphy, Ph.D.; Mark D. Hillman; Mark Baisley; Shirley J. Seitz; and Wayne W. Williams; Petitioners v. Dominick MORENO; Christine Le Lait; William N. Patterson; Rita Mahoney; Michael Bowman; Jon Golden–Dubois; Mikel Whitney; and Scott Gessler, in his official capacity as Colorado Secretary of State; RespondentsandBoard of County Commissioners of the County of Douglas, State of Colorado, a body politic and corporate; City of Aurora; Mayor Edward J. Tauer, in his official capacity as Mayor of the City of Aurora; Colorado Latino Forum, a Colorado non-profit corporation; Colorado Hispanic Bar Association; a Colorado non-profit corporation; and Bill Thiebaut, Intervenors.
• Court: Colorado Supreme Court

2012 CO 14

270 P.3d 961

Kathryn H. HALL; Danny E. Stroud; Dick R. Murphy, Ph.D.; Mark D. Hillman; Mark Baisley; Shirley J. Seitz; and Wayne W. Williams; Petitioners

v.Dominick MORENO; Christine Le Lait; William N. Patterson; Rita Mahoney; Michael Bowman; Jon Golden–Dubois; Mikel Whitney; and Scott Gessler, in his official capacity as Colorado Secretary of State; RespondentsandBoard of County Commissioners of the County of Douglas, State of Colorado, a body politic and corporate; City of Aurora; Mayor Edward J. Tauer, in his official capacity as Mayor of the City of Aurora; Colorado Latino Forum, a Colorado non-profit corporation; Colorado Hispanic Bar Association; a Colorado non-profit corporation; and Bill Thiebaut, Intervenors.

No. 11SC842.

Supreme Court of Colorado, En Banc.

Feb. 27, 2012.

Hale Westfall, LLP, Richard A. Westfall, Allan L. Hale, Peter J. Krumholz, Matthew W. Spengler, Christopher M. McNicholas, Denver, Colorado, Attorneys for Petitioners Kathryn H. Hall, Danny E. Stroud, Dick R. Murphy, Ph.D., Mark D. Hillman, Mark Baisley, Shirley J. Seitz, and Wayne W. Williams.

Heizer Paul Grueskin LLP, Mark G. Grueskin, Lila M. Bateman, Martha M. Tierney, Denver, Colorado, Attorneys for Respondents Dominick Moreno, Christine Le Lait, William N. Patterson, Rita Mahoney, Michael Bowman, Jon Golden–Dubois, and Mikel Whitney.

Douglas County Attorney's Office, Lance J. Ingalls, Douglas County Attorney, Kelly Dunnaway, Deputy County Attorney, Castle Rock, Colorado, Attorneys for Intervenor Board of County Commissioners of the County of Douglas, State of Colorado, a body politic and corporate.Brownstein Hyatt Farber Schreck, LLP, Martha L. Fitzgerald, Hubert A. Farbes, Jr., Michael F. Feeley, Denver, Colorado, City Attorney's Office, City of Aurora, Charles H. Richardson, Jr., Billy R. Stiggers, Aurora, Colorado, Attorneys for Intervenors City of Aurora and Mayor Edward J. Tauer, in his official capacity as Mayor of the City of Aurora.Larimer County Attorney's Office, George H. Hass, Larimer County Attorney, Fort Collins, Colorado, Attorneys for Amicus Curiae Board of County Commissioners of Larimer County.Jefferson County Attorney's Office, Ellen G. Wakeman, Jefferson County Attorney, Writer Mott, Assistant County Attorney, Golden, Colorado, Attorneys for Amicus Curiae Board of County Commissioners of the County of Jefferson.No briefs filed by or on behalf of Scott Gessler, in his official capacity as Colorado Secretary of State; Colorado Latino Forum, a Colorado non-profit corporation; Colorado Hispanic Bar Association, a Colorado non-profit corporation; or Bill Thiebaut.Chief Justice BENDER delivered the Opinion of the Court.

¶ 1 This case involves the redistricting of Colorado's congressional districts following the results of the 2010 census. Redistricting is an incredibly complex and difficult process that is fraught with political ramifications and high emotions. This process is made all the more complicated by the depth and variety of Colorado's local and regional interests. In many ways, as the trial court observed, Colorado serves as a microcosm of our diverse and great nation, with its rich diversity of cultures and ethnicities, its eclectic and sharply-contrasting geographic features, its broad economic and recreational pursuits, and its combination of rural and urban populations. While this diversity is what makes Colorado great, each of these unique interests merely adds to the complexity and contentiousness of redistricting.

¶ 2 Judicial redistricting is truly an “unwelcome obligation.” Connor v. Finch, 431 U.S. 407, 415, 97 S.Ct. 1828, 52 L.Ed.2d 465 (1977). Nevertheless, once it becomes clear that the General Assembly is unable or unwilling to amend constitutionally infirm boundaries, the task must necessarily be completed by the judiciary. See Beauprez v. Avalos, 42 P.3d 642, 648–49 (Colo.2002).

¶ 3 Pursuant to the Colorado Constitution, the General Assembly is tasked with redrawing the state's congressional districts every ten years to reflect the population changes documented by the decennial census. Colo. Const. art. V, § 44.¹ Integral to this task is the federal constitutional requirement that each congressional district must contain an equal number of citizens. Wesberry v. Sanders, 376 U.S. 1, 17–18, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964) (interpreting U.S. Const. art. I, § 2).

¶ 4 The 2010 census revealed that Colorado continues to be entitled to seven representatives in the United States House of Representatives but that the existing congressional districts are now of unequal population size due to population growth and movement since the last census. Thus, the old districts are malapportioned in violation of the one person, one vote principle mandated by Article I, Section 2 of the United States Constitution. See Reynolds v. Sims, 377 U.S. 533, 568, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). Under our Constitution, the General Assembly was responsible for redrawing the state's congressional districts during the 2011 legislative session, but the legislature was unable to pass a new redistricting scheme.²

¶ 5 Consequently, a number of plaintiffs sued the Secretary of State in Denver District Court (“the trial court”) to enjoin the use of the existing, malapportioned congressional districts and to replace them with new districts of equal population that would satisfy all of the constitutional and statutory criteria. Although this action was proper under the procedure we have previously set forth, see Beauprez, 42 P.3d 642, we acknowledge that this forces the apolitical judiciary to engage in an inherently political undertaking. See Gaffney v. Cummings, 412 U.S. 735, 753–54, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973). On November 10, 2011, the trial court issued an order declaring the current congressional districts unconstitutional. The order also discussed in exhaustive detail how the map first proposed and later amended by the Moreno plaintiffs (“the Moreno/South Map”) satisfied all mandatory and discretionary redistricting criteria. Hence, the trial court adopted the Moreno/South Map and ordered the Secretary of State to implement it in future congressional elections.

¶ 6 Petitioners here, the Hall Plaintiffs joined by Douglas County as an intervenor, appealed to the court of appeals, but asked us pursuant to C.A.R. 50 to issue a writ of certiorari before argument and judgment in that court. Due to the importance and time sensitive nature of this issue, we granted this request and ordered briefing and oral argument on an expedited schedule. The sole issue for our review is whether the adopted map satisfies all constitutional and statutory criteria.

¶ 7 On December 5, 2011, we issued an order and mandate affirming the trial court's adoption of the Moreno/South Map. We did so before issuing an opinion to give the appropriate officials adequate time to prepare for the upcoming elections. We stated that a written opinion would follow in the near future. This is that opinion.

I. Procedural History

¶ 8 The 2010 census revealed that Colorado's existing congressional districts were malapportioned in violation of Article I, Section 2 of the U.S. Constitution. See Wesberry, 376 U.S. at 18, 84 S.Ct. 526. Nevertheless, during the 2011 legislative session, due to an apparently partisan legislative impasse, the General Assembly failed to adopt new congressional boundaries.

A. Pre–Trial

¶ 9 As a result, in May 2011, plaintiffs Dominick Moreno, Christine Le Lait, William Patterson, Rita Mahoney, Roger Clark, Kristi Matsunaka, and Mikel Whitney (the “Moreno Plaintiffs”) ³ and plaintiffs Kathryn Hall, Danny Stroud, Dick Murphy, Mark Hillman, Wayne Williams, Mark Baisley, and Shirley Seitz (the “Hall Plaintiffs”) filed separate lawsuits in Denver District Court against the Colorado Secretary of State. Both the Moreno Plaintiffs and the Hall Plaintiffs requested that the court adopt their proposed congressional redistricting plan. Subsequently, the cases were consolidated.

¶ 10 The City of Aurora and Aurora Mayor Edward Tauer (“Aurora”), the Douglas County Board of County Commissioners (“Douglas County”), the Colorado Latino Forum and the Colorado Hispanic Bar Association (collectively, CLF/CHBA), and Bill Thiebaut intervened. The court also accepted and considered the amicus briefs of ten additional parties: Liane McFayden, El Paso County, Gerald Harrison, Larimer County, Weld County, Jefferson County, Clean Water Action, Shaffer for Colorado, Club 20, and Padres y Jóvenes Unidos. Club 20, Weld County, and Jefferson County also filed proposed maps along with their amicus briefs. Prior to trial, the Moreno Plaintiffs moved to strike these proposed maps, arguing that an amicus curiae cannot submit proposed maps without becoming an intervenor. However, the trial court accepted these proposed maps through the Hall Plaintiffs, who evidently adopted them as their own exhibits at a status conference prior to the trial.

B. Trial

¶ 11 Trial commenced on October 11, 2011, and spanned ten days. The court heard testimony from thirty-two witnesses (including five experts and five current U.S. Representatives from Colorado) and admitted over 1,000 pages of exhibits as evidence—including more than ten proposed maps. Seven different parties were represented at trial: the Secretary of State,⁴ the Moreno Plaintiffs, the Hall Plaintiffs, CLF/ CHBA, Douglas County, Aurora, and Thiebaut. Each party had the opportunity to present an opening statement and closing argument, present witnesses, and cross-examine each other's witnesses. The court did not place any limits on who could testify or how many witnesses each party could call. The court offered to continue the trial on a Saturday, if necessary, to get through all of the parties' witnesses.

¶ 12 The trial court was flexible with all parties' witnesses throughout the trial court proceedings. Several witnesses were permitted to testify out of order to accommodate...