Lance v. Dennis

• Citation: 444 F.Supp.2d 1149
• Decision Date: 11 August 2006
• Docket Number: Civil Action No. 03-cv-02453-ZLW-CBS.
• Parties: Keith LANCE, Carl Miller, Renee Nelson, Nancy O'Connor, Plaintiffs, v. Gigi DENNIS, Secretary of State for the State of Colorado, in her Official Capacity only, Defendant.
• Court: U.S. District Court — District of Colorado

Page 1149

444 F.Supp.2d 1149

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

Civil Action No. 03-cv-02453-ZLW-CBS.

United States District Court, D. Colorado.

August 11, 2006.

COPYRIGHT MATERIAL OMITTED

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

Alan J. Gilbert, Holme, Roberts & Owen, LLP, Anthony Joseph Navarro, Holland & Hart, LLP, Monica Marie Marquez, Colorado Attorney General's Office, Denver, CO, for Defendant.

Before EBEL, Senior 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, Senior Circuit Judge.

This case is a continuation of one of several rounds of litigation based on Colorado's congressional redistricting after the 2000 census which resulted in dueling electoral maps—one created by the Colorado state courts in 2002, after the General Assembly failed to pass a plan in the allotted time, and the other created by the General Assembly after the 2002 election. The Lance Plaintiffs brought suit against then-Secretary of State Davidson, asserting that Colo. Const. Art. V, § 44, as interpreted by the Colorado Supreme Court, violated Art. I, § 4 of the U.S. Constitution (the "Elections Clause" claim) and the First and Fourteenth Amendments of the U.S. Constitution (the "Petition Clause" claim). Lance v. Davidson [hereinafter "Lance I"], 379 F.Supp.2d 1117, 1122 (D.Colo.2005). The Supreme Court reversed our prior decision dismissing the complaint and action and remanded the case to us for further consideration. See Lance v. Dennis, [hereinafter "Lance II"], ___ U.S. ___, 126 S.Ct. 1198, 163 L.Ed.2d 1059 (2006). Exercising jurisdiction pursuant to 28 U.S.C. § 2284, we again DISMISS with prejudice Plaintiffs' Amended Complaint and cause of action.

BACKGROUND

The first round of litigation following Colorado's redistricting involved two suits: 1) an original action in the Colorado Supreme Court by the state attorney general, People ex rel. Salazar v. Davidson, 79 P.3d 1221 (Colo.2003), in which the Colorado Supreme Court held that Colo. Const. Art. V, § 44, consistent with the federal Constitution, limited redistricting to once per decade, such that the legislative plan passed in 2003—after the state court's adoption of a plan in 2002—violated the state constitution, id. at 1226, 1231-32, 1243; and 2) a federal court action brought by proponents of the court-ordered plan, Keller v. Davidson, 299 F.Supp.2d 1171 (D.Colo.2004), in which this three judge district court ruled that defendants' original counterclaims, which also raised the issue of whether Colo. Const. Art. V, § 44 violates Article I, § 4 of the Federal Constitution, were precluded under Colorado issue preclusion law by the judgment in Salazar, see Keller, 299 F.Supp.2d at 1181-83.

Prior to the dismissal in Keller, the Lance Plaintiffs brought this suit. In our previous order in this suit, we ruled that the Plaintiffs' Elections Clause claim was jurisdictionally barred by the Rooker-Feldman doctrine, relying upon the Plaintiffs' privity status with litigants in Salazar. Lance I, 379 F.Supp.2d at 1125-27. Additionally, we ruled that Plaintiffs' Petition Clause claim failed to state a claim upon which relief may be granted because Colo. Const. Art. V, § 44, as interpreted in Salazar, does not prohibit political speech or petition for redress. Id. at 1131-32.

On appeal from that order, the Supreme Court disagreed with our Rooker-Feldman ruling,¹ vacated our judgment, and remanded the case to us. Lance II, 126 S.Ct. at 1202-03. Because we dismissed Plaintiffs' Petition Claim on grounds other than Rooker-Feldman, our prior adjudication of that claim stands. See Lance I, 379 F.Supp.2d at 1131-32 (dismissing for failure to state a claim upon which relief may be granted); see also Lance II, 126 S.Ct. at 1204 (Stevens, J., dissenting) ("[Plaintiffs'] spurious Petition Clause claim was also properly dismissed by the District Court."). Accordingly, only Plaintiffs' Elections Clause claim is before us again on remand. We had not previously considered whether issue preclusion barred that claim, see Lance I, 379 F.Supp.2d at 1127 n. 14, and thus ordered the parties to address that defense in an initial motion to dismiss by Defendant (now Secretary of State Dennis), accompanied by supporting and responsive briefing.² We held a hearing on that motion on July 26, 2006, and we now GRANT Defendant's motion to dismiss Plaintiffs' Elections Clause claim as barred by issue preclusion.

DISCUSSION

Plaintiffs assert that their interest under the Elections Clause as private citizens constitutes an "individual" right—the right to vote in congressional districts authorized by the Elections Clause—that is independent and distinct from any "institutional" right—the powers and rights of the state legislatures to draw congressional districts—previously asserted by the litigants in Salazar or Keller. Defendant argues that Plaintiffs' Elections Clause claim should be dismissed 1) for lack of standing; 2) for failure to state a claim;³ and 3) based on the defense of issue preclusion.

I. Standing

We properly begin by determining whether the Plaintiffs have Article III standing to bring their Elections Clause claim, which requires the Plaintiffs to "allege (and ultimately prove) that they have suffered an `injury in fact,' that the injury is fairly traceable to the challenged action of the Defendants, and that it is redressable by a favorable decision." Initiative and Referendum Inst. v. Walker, 450 F.3d 1082, 1087 (10th Cir.2006) (en banc). Only the injury-in-fact requirement—defined as "an invasion of a concrete and particularized legally protected interest," McConnell v. Fed. Election Comm'n, 540 U.S. 93, 227, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992))—is questionable here.⁴ Plaintiffs allege that "conducting congressional elections under the Court's Plan instead of the General Assembly's Plan" injures the Plaintiffs' individual right "to vote for congressional representatives in districts authorized by th[e] [Elections Clause]"—that is, in districts created by the General Assembly.⁵ Defendant argues that this allegation fails to state an "injury in fact" because the right to vote in districts authorized by the Elections Clause is not a "legally protected interest." Although we disagree with Plaintiffs on the merits, we conclude that they have presented a justiciable case or controversy.

Despite the confusion generated by the phrase "legally protected interest," two recent cases warn against conflating standing with the merits. See In re Special Grand Jury 89-2, 450 F.3d 1159, 1172 (10th Cir.2006); Initiative & Referendum, 450 F.3d at 1092-97. "For purposes of the standing inquiry, the question is not whether the alleged injury rises to the level of a constitutional violation. That is the issue on the merits." Initiative & Referendum, 450 F.3d at 1088 (emphasis added). Thus, in this case, whether the Elections Clause vests powers and rights only in the state legislature and Congress rather than conferring distinct individual rights in private citizens, and whether the Elections Clause is violated by conducting elections under a court's rather than the legislature's plan, are merits issue.

The relevant standing question is whether Plaintiffs have "present[ed] a nonfrivolous legal challenge, alleging an injury to a protected right," even if "the underlying interest is not legally protected." Id. at 1093. Although it is not always clear which injuries will suffice, we have stated that "once an interest has been identified as a `judicially cognizable interest' in one case, it is such an interest in other cases as well;" this is so even if it is "abundantly clear that the interest [asserted] is indeed not protected by any law [because] that lack of protection goes to the merits, not standing." In re Special Grand Jury 89-2, 450 F.3d at 1172; see also Bennett v. Spear, 520 U.S. 154, 167, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (substituting "judicially cognizable interest" for "legally protected interest" in the definition of "injury in fact").

It can hardly be doubted that the Supreme Court has recognized the right to vote as a "judicially cognizable interest." See, e.g., Reynolds v. Sims, 377 U.S. 533, 554, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) ("[T]he Constitution of the United States protects the right of all qualified citizens to vote, in state as well as in federal elections."); United States v. Classic, 313 U.S. 299, 314, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941) ("The right of the people to choose ... is a right established and guaranteed by the Constitution and hence is one secured by it to those citizens and inhabitants of the state entitled to exercise the right."). In fact, as one prominent treatise describes, "[e]lectoral interests are among the abstract interests that support standing in a wide variety of settings." 13 Charles A. Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice & Procedure, § 3531.4.⁶ Whether the right to vote is protected by Article I, § 2,⁷ the First and Fourteenth Amendments,⁸ or some other constitutional provision, it is a "judicially cognizable interest" such that Plaintiffs have "alleg[ed] an injury to a protected right," Initiative & Referendum, 450 F.3d at 1093, sufficient to establish standing. It is irrelevant for standing purposes, however, that Plaintiffs do not specifically raise their right to vote claim under Article I, § 2 or the First or Fourteenth Amendments of the U.S....