Free Motion to Dismiss - District Court of Colorado - Colorado

Case 1:03-cv-02453-ZLW-DME

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Filed 04/20/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-CV-02453-ZLW-CBS 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.

SECRETARY'S MOTION TO DISMISS PLAINTIFFS' ELECTION CLAUSE CLAIM Pursuant to Fed. R. Civ. P. 12(b)(6) and this Court's Order dated March 21, 2006, Defendant Gigi Dennis, the Colorado Secretary of State (the "Secretary"), by and through her attorneys, the Office of the Colorado Attorney General, respectfully renews her motion to dismiss Plaintiffs' first claim for relief under U.S. Const. art. I, § 4 (the "Elections Clause claim"). In support of her motion, the Secretary states as follows: 1. This action concerns the Colorado General Assembly's mid-decade

congressional redistricting plan passed in May 2003 (S.B. 03-352, codified at C.R.S. § 2-1101 (2005)). In December 2003, the Colorado Supreme Court held S.B. 03-352 unconstitutional under art. V, § 44 of the Colorado Constitution. People ex rel. Salazar v.

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Davidson, 79 P.3d 1221 (Colo. 2003). In reaching this holding, the Colorado Supreme Court concluded that Colo. Const. art. V, § 44 does not violate art. I, § 4 of the U.S. Constitution. Id. at 1231-32. The United States Supreme Court denied the General Assembly's petition for writ of certiorari, thus ending the Salazar litigation. Colorado General Assembly v. Salazar, 541 U.S. 1093 (2004). 2. Here, Plaintiffs assert that art. V, § 44, as interpreted in Salazar, violates art. I,

§ 4 because art. V, § 44 prohibits the General Assembly from drawing a mid-decade redistricting plan (i.e., S.B. 03-352). Plaintiffs seek a declaration that art. V, § 44, as interpreted by the Colorado Supreme Court in Salazar, is null and void because it violates art. I, § 4. Plaintiffs also seek an injunction requiring the Secretary to implement S.B. 03352. 3. This action represents the third lawsuit filed against the Secretary of State

regarding the constitutionality of S.B. 03-352 and art. V, § 44. In addition to the Salazar case, the Secretary was a party to Keller v. Davidson, Civ. Action No. 03-Z-1482 (CBS) (D. Colo.). In Keller, this Court dismissed counterclaims raised by the General Assembly, Governor and Secretary alleging that art. V, § 44 violated art. I, § 4. This Court reasoned that such claims were fully litigated in Salazar and, therefore, were barred by the RookerFeldman doctrine and by issue preclusion. Keller v. Davidson, 299 F. Supp.2d 1171 (D. Colo. 2004). 4. As demonstrated in the supporting brief submitted with this motion, which is

incorporated herein by this reference, Plaintiffs' claim under art. I, § 4 was fully and finally 2

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adjudicated in Salazar by parties with whom Plaintiffs stand in privity. Therefore (and just as this Court found in Keller), this claim is barred under Colorado law by the doctrine of issue preclusion. Accordingly, Plaintiffs' Elections Clause claim must be dismissed with prejudice under Rule 12(b)(6) for failure to state a claim upon which relief may be granted. See McArthur v. San Juan County, 309 F.3d 1216, 1220-21 (10th Cir. 2002) (discussing standards for Rule 12(b)(6) motions). WHEREFORE, for the foregoing reasons, the Secretary of State respectfully moves this Court to dismiss with prejudice Plaintiffs' first claim for relief under the Elections Clause, U.S. Const. art. I, § 4.

Respectfully submitted this 20th day of April, 2006. JOHN W. SUTHERS Attorney General s/ Monica M. Márquez MAURICE KNAIZER Deputy Attorney General MONICA M. MÁRQUEZ Assistant Attorney General Attorneys for Defendant Gigi Dennis, Colorado Secretary of State 1525 Sherman Street, 5th Floor Denver, Colorado 80203 Phone: 303-866-4500 Facsimile: 303-866-5671

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CERTIFICATE OF SERVICE I hereby certify that on April 20, 2006, I electronically filed the within SECRETARY'S MOTION TO DISMISS PLAINTIFFS' ELECTION CLAUSE CLAIM with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: John S. Zakhem, Esq. Brett R. Lilly, Esq. Doyle Sakhem Suhre & Lilly, LLC 950 S. Cherry St., Suite 312 [email protected] Denver, Colorado 80246 Attorneys for Plaintiffs

Courtesy copies sent via facsimile to: David R. Fine, Esq. Kelly Haglund Garnsey & Kahn LLC 1441 Eighteenth Street, Suite 300 Denver, Colorado 80202 FAX: 303-293-8705 Thomas M. Rogers III, Esq. Rothgerber Johnson & Lyons, LLP One Tabor Center, 30th Floor 1200 Seventeenth Street Denver, Colorado 80202 FAX: 303-623-9222

s/ Pamela Ponder___________