Lance v. Davidson, 03-CV-02453-ZLW-CBS.

• Decision Date: 27 July 2005
• Docket Number: No. 03-CV-02453-ZLW-CBS.,03-CV-02453-ZLW-CBS.
• Citation: 379 F.Supp.2d 1117
• Parties: Keith LANCE, Carl Miller, Renee Nelson, Nancy O'Connor Plaintiffs, v. Donetta DAVIDSON, Secretary of State for the State of Colorado, in her Official Capacity Only, Defendant.
• Court: U.S. District Court — District of Colorado

379 F.Supp.2d 1117

Keith LANCE, Carl Miller, Renee Nelson, Nancy O'Connor Plaintiffs, v. Donetta DAVIDSON, Secretary of State for the State of Colorado, in her Official Capacity Only, Defendant.

No. 03-CV-02453-ZLW-CBS.

United States District Court, D. Colorado.

July 27, 2005.

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John Stuart Zakhem, Doyle, Zakhem, Suhre & Lilly, LLC, Denver, CO, for Plaintiffs.

Alan J. Gilbert, Attorney at Law, Greenwood Village, CO, Anthony Joseph Navarro, Monica Marie Marquez, Colorado Attorney General's Office, Christopher R. Paulson, Saunders, Snyder, Ross & Dickson, P.C., Richard Carl Kaufman, McKenna, Long & Aldridge, LLP, Denver, CO, for Defendant.

Before EBEL, Circuit Judge of the United States Court of Appeals for the Tenth Circuit, PORFILIO, Senior Circuit Judge of the United States Court of Appeals for the Tenth Circuit, and WEINSHIENK, Senior District Judge of the United States District Court for the District of Colorado.

MEMORANDUM OPINION AND ORDER

DAVID M. EBEL, Circuit Judge.

This action, which we hear pursuant to 28 U.S.C. § 2284, is part of the ongoing litigation over federal election districts created by the Colorado courts in the wake of the 2000 census. Specifically, Plaintiffs assert that Article V, § 44, of the Colorado Constitution, as it has been interpreted by the Colorado Supreme Court in People ex rel. Salazar v. Davidson, 79 P.3d 1221 (Colo.2003), violates (1) the Elections Clause, which vests in the state legislatures the authority to determine the manner in which congressional representatives are selected, U.S. Const. art. I, § 4; and (2) the Petition Clause, which guarantees the right to petition the government for redress of grievances, U.S. Const. amends. I, XIV.

Given the long history of previous litigation in this case, our scheduling order directed Defendant to address only jurisdictional and preclusion issues in the initial motion to dismiss. Defendant filed such a motion, asking us to dismiss the case on the basis of Rooker-Feldman¹ and issue preclusion, which we heard on June 20, 2005. In an oral ruling, we granted Defendant's motion to dismiss as to Plaintiffs' Elections Clause claim on the basis of Rooker-Feldman but denied the motion to dismiss as to Plaintiffs' Petition Clause claim. At the conclusion of the hearing, we accepted for filing Defendant's oral motion to dismiss Plaintiffs' Petition Clause claim for failure to state a claim under Fed.R.Civ.P. 12(b)(6). This opinion explains the reasoning behind our previous oral ruling that this court lacks jurisdiction to consider Plaintiffs' claim under the Elections Clause based on Rooker-Feldman but that Plaintiffs' Petition Clause claim is not barred by either Rooker-Feldman or the doctrine of issue preclusion. However, as to Plaintiffs' Petition Clause claim we now grant Defendant's motion to dismiss under Rule 12(b)(6) for failure to state a claim.

BACKGROUND

After the 2000 census, Congress determined that Colorado would be allotted an additional seat in the House of Representatives, increasing the number of congressional districts in Colorado from six to seven. Keller v. Davidson, 299 F.Supp.2d 1171, 1174 (D.Colo.2004). However, the Colorado General Assembly failed to pass a congressional redistricting plan in time for the 2002 elections. Id. After a group of Colorado voters initiated litigation, the Colorado state courts stepped in and drew a congressional district map for the 2002 elections that took into account the new census figures and conformed to federal voting rights requirements. See Avalos v. Davidson, No. 01-CV-2897, 2002 WL 1895406, at *13 (Colo.Dist.Ct. Jan. 25, 2002) (unpublished), aff'd sub nom. Beauprez v. Avalos, 42 P.3d 642 (Colo.2002).

After the 2002 elections gave Colorado Republicans majorities in both houses of the state legislature, the General Assembly made another attempt at passing a redistricting plan. Keller, 299 F.Supp.2d at 1174. This time they were successful, and the redistricting legislation was signed into law by Governor Bill Owens on May 9, 2003. An Act Concerning the Congressional Redistricting of Colorado with Minimal Population Deviation, 2003 Colo. Legis. Serv. ch. 247 (S.B.03-352) (West).² Colorado now had dueling electoral maps, a situation which spurred three discrete legal proceedings: (1) a state-court suit later removed to this court (Keller); (2) an original proceeding in the Colorado Supreme Court (Salazar); and (3) the instant action brought under 42 U.S.C. § 1983 (Lance).

The first of these cases, Keller, was filed by proponents of the court-approved plan almost immediately after the passage of the legislative plan. 299 F.Supp.2d at 1174. The Keller defendants, who were proponents of the legislative plan, asserted a number of counterclaims. Id. at 1175, 1178-79. Shortly before Keller's removal to this court, then-Colorado Attorney General Ken Salazar filed an original petition in the Colorado Supreme Court, seeking an order prohibiting Secretary of State Donetta Davidson from implementing the legislative redistricting plan and commanding her to use the court plan in the 2004 elections. See Salazar, 79 P.3d at 1227.

On December 1, 2003, the Colorado Supreme Court handed down its decision in Salazar, holding that Colo. Const. Art. V, § 44 limited redistricting to once per decade, to be completed in the time between the decennial census and the first election of the decade. 79 P.3d at 1243. Since the state courts had adopted a redistricting plan in 2002 after the legislature's efforts had failed, the Colorado Supreme Court concluded that the legislative plan passed in May 2003 violated the state constitution, and it ordered the secretary of state to employ the court-approved plan through the 2010 election season. Id. Although the Salazar decision contained a lengthy discussion of federal constitutional law (and specifically, Article I, § 4 of the Constitution), the court maintained that its holding was premised on the Colorado Constitution. Salazar, 79 P.3d at 1242.

With the favorable ruling from the Colorado Supreme Court in hand, the Keller plaintiffs had little else to litigate, and the focus of the case turned to the federal constitutional questions asserted in the Keller defendants' original and amended counterclaims. We held that Rooker-Feldman deprived the federal courts of jurisdiction over the Keller defendants' amended counterclaims. Keller, 299 F.Supp.2d at 1184. This was because, inter alia, the amended counterclaims were filed after the state supreme court's decision in Salazar, and thus were not parallel. Id. at 1178-79

As to the original counterclaims, we held that the doctrine of issue preclusion prevented our consideration of the constitutional question. Id. at 1183. This was because we interpreted the state supreme court decision in Salazar as having decided the same federal constitutional question before our court arising under the Elections Clause. Id. at 1182. After the United States Supreme Court denied certiorari in Salazar, we dismissed the Keller suit. Keller v. Davidson, No. 03-Z-1482 (CBS), 2004 WL 2359556, at *1 (D.Colo. Oct. 15, 2004).

This was not, however, the end of the road. Three days after the Colorado Supreme Court's decision in Salazar (but prior to our dismissal of Keller) a new group of Plaintiffs who favored the legislative plan filed the instant suit against Secretary of State Davidson. (Lance v. Davidson ).³ Specifically, Plaintiffs asserted two constitutional claims in their amended complaint.⁴ First, they argued that Article V, § 44 of the Colorado Constitution, as interpreted in Salazar, violated Article I, § 4 of the U.S. Constitution by depriving the state legislature of its responsibility to draw congressional districts (the Elections Clause claim). Second, Plaintiffs claimed that Colo. Const. Art. V, § 44, as interpreted in Salazar, deprived them of their right to petition the government for redress of grievances under the First and Fourteenth Amendments of the U.S. Constitution (the Petition Clause claim).

On January 3, 2005, Defendant filed a motion to dismiss Plaintiffs' claims on the basis of Rooker-Feldman and issue preclusion. At the hearing on the motion, we ruled from the bench that Rooker-Feldman deprived us of jurisdiction over Plaintiffs' Elections Clause claim. As to Plaintiffs' Petition Clause claim, however, we ruled that we had jurisdiction and that the claim was not barred by the doctrine of issue preclusion. We then accepted for filing an oral motion to dismiss Plaintiffs' Petition Clause claim as a matter of law, pursuant to Fed.R.Civ.P. 12(b)(6).

Therefore, we address three motions before the court, the first two of which have been ruled upon orally: (1) a motion to dismiss the case for lack of jurisdiction under Rooker-Feldman, brought pursuant to Fed.R.Civ.P. 12(b)(1); (2) a motion to dismiss the case on the basis of issue preclusion, brought pursuant to Fed.R.Civ.P. 12(b)(6);⁵ and (3) a motion to dismiss Plaintiffs' Petition Clause Claim for failure to state a claim upon which relief can be granted, brought pursuant to Fed.R.Civ.P. 12(b)(6).

DISCUSSION

I. Rooker-Feldman deprives us of jurisdiction to consider Plaintiffs' claim that Colo. Const. Art. V, § 44 violates Article I, § 4 of the United States Constitution (the Elections Clause).

Article V, § 44 of the Colorado Constitution provides, in relevant part:

When a new apportionment shall be made by congress, the general assembly shall divide the state into congressional districts accordingly.

Although the plain text of this provision makes no mention of how often congressional districts may be drawn, the Colorado Supreme Court in Salazar held that Colo. Const. Art. V, § 44 limited redistricting to once per decade, to be completed in the time between the decennial census and the first election of the decade. 79 P.3d at 1243. The Salazar court effectively held that once districts are...