Free Status Report - District Court of Colorado - Colorado

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

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Filed 03/09/2006

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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. STATUS REPORT OF THE COLORADO SECRETARY OF STATE Pursuant to this Court's Order of March 1, 2006, Defendant Gigi Dennis,1 the Colorado Secretary of State, hereby submits this status report. U.S. Supreme Court's ruling. On February 21, 2006, the U.S. Supreme Court issued a decision vacating the judgment in this matter and remanding the case to this Court. Lance v. Dennis, 546 U.S. __ (2006). The Supreme Court concluded that, by applying Rooker-Feldman against parties in privity with a party to the earlier state-court action, this Court erroneously conflated preclusion law with Rooker-Feldman. The Court held that the "Rooker-Feldman doctrine does not bar actions by nonparties to the earlier state-court judgment simply because, for purposes of preclusion law, they could be considered in privity with a party to the judgment." Id.

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Defendant Gigi Dennis succeeded Donetta Davidson as Colorado Secretary of State in the fall of 2005. Pursuant to Fed. R. Civ. P. 25(d), a Notice of Substitution of Party is being filed simultaneously with this status report.

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In vacating the judgment, the Supreme Court did not address whether issue preclusion requires dismissal of Plaintiffs' Elections Clause claim. It did not pass on this Court's resolution of the merits of Plaintiffs' Petition Clause claim, nor did it address the merits of Plaintiffs' Elections Clause claim. In a dissenting opinion, Justice Stevens stated that he believed this Court's judgment dismissing the cause with prejudice should have been affirmed because Plaintiffs' Elections Clause claim is barred by issue preclusion and the Petition Clause claim was properly dismissed. Lance, 546 U.S. at __ (Stevens, J., dissenting). Justice Stevens observed that Plaintiffs' Elections Clause claim "is the same as that advanced by their official representatives and decided by the Colorado Supreme Court in People ex rel. Salazar v. Davidson" and that "as a matter of Colorado law, appellants are clearly in privity with both then-Colorado Attorney General Salazar . . . and the Colorado General Assembly." Id. Justices Ginsburg and Souter concurred in the per curiam decision and noted that Justice Stevens "persuasively urged that issue preclusion warrants affirmance," but concluded that this issue is "best left for full airing and decision on remand." Lance, 546 U.S. at __ (Ginsburg, J., concurring). Secretary's proposed plan and schedule for resolution of the case. Following the Supreme Court's decision, the parties conferred in an attempt to reach agreement concerning a proposed plan and schedule for resolution of this case. The parties appear to agree that final resolution of this case cannot realistically be accomplished in time to affect the 2006 congressional elections, as several deadlines for the election process are rapidly approaching and, in some instances, have already passed. Thus, while the parties wish to resolve this case in a timely fashion, there is no present need for expedited proceedings. 2

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The Secretary intends to renew her motion to dismiss under Fed. R. Civ. P. 12(b)(6). She will argue that Plaintiffs' Elections Clause claim is barred by issue preclusion. She will also argue that Plaintiffs' Petition Clause claim fails to state a claim, and that the Court should simply reaffirm its prior ruling with respect to that claim. The Secretary understands that Plaintiffs prefer that the parties brief both issue preclusion and the merits of the Elections Clause claim at the same time, and that Plaintiffs will urge the Court to issue a ruling on the merits of the Elections Clause claim even if it concludes that this claim is barred by issue preclusion. The Secretary understands that Plaintiffs believe this consolidated approach will speed final resolution of the case. The Secretary disagrees with Plaintiffs' suggested approach and believes that the Court should proceed in accordance with the plan for resolution previously adopted by this Court's Order dated November 22, 2004. Specifically, the Court should first address whether Plaintiffs' Elections Clause claim is barred by issue preclusion. Only if the Court concludes that the claim is not barred should the parties proceed to brief and argue the merits. The Secretary believes that this approach is not only procedurally appropriate, see Conopco, Inc. v. Roll Int'l, 231 F.3d 82, 86 (2d Cir. 2000) (preclusion defense properly presented and addressed on Rule 12(b)(6) motion), but also conserves the time and resources of the parties and the Court. Because the parties have addressed issue preclusion in earlier briefs, and because the Secretary wishes to avoid any suggestion of delay, the Secretary proposes that she immediately file a renewed motion to dismiss, but that the parties thereafter submit simultaneous briefs to the Court, not to exceed 15 pages, and limited to issue preclusion only. This approach mirrors that taken regarding the supplemental briefing submitted on Plaintiffs' 3

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Petition Clause claim. (The Secretary does not believe that the Petition Clause claim requires further briefing.) The Secretary is open to oral argument on this issue if the Court believes it would be helpful. The Secretary believes this is an efficient process for resolving her motion to dismiss. Should the Court conclude that the Elections Clause claim is barred by issue preclusion, Plaintiffs may appeal this determination to the U.S. Supreme Court. If the Court determines that the Elections Clause claim is not barred by issue preclusion, the Secretary cannot immediately appeal that decision because a denial of a motion to dismiss is not a final appealable order. In that event, the parties should immediately proceed to address the merits of Plaintiffs' Elections Clause claim. At this time, the Secretary and the Plaintiffs believe that this claim can be decided through briefing and oral argument. In accordance with the previously adopted plan for resolution of this case, the Secretary proposes that Plaintiffs file an opening merits brief 30 days after a ruling that the claim is not barred by issue preclusion; the Secretary file a response brief 30 days thereafter; and Plaintiffs file a reply 15 days later, to be followed by oral argument. Other issues. Other potential issues support the Secretary's proposed bifurcated approach for resolving this case in an orderly fashion. Specifically, the Secretary has been contacted by other parties who have participated in the Keller v. Davidson litigation. The Secretary understands that, should this case proceed immediately to the merits of Plaintiffs' Elections Clause claim, these parties may seek to intervene to renew possible claims of partisan gerrymandering and procedural irregularities regarding S.B. 03-352, the legislature's mid-decade redistricting plan invalidated by the Colorado Supreme Court. The Secretary takes the position that, even if Plaintiffs succeed on the merits of their Elections Clause claim, they are not entitled to the specific injunctive relief requested 4

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(implementation of the plan embodied in S.B. 03-352), because this mid-decade redistricting statute was held "null and void" in Salazar and cannot be resurrected through this litigation. Rather, at most, Plaintiffs may obtain a declaratory judgment that would permit the current General Assembly to pass another redistricting statute. Unless and until the Court both resolves the merits of Plaintiffs' claims in their favor and grants the requested injunctive relief (implementation of S.B. 03-352), the potential claims of these other parties do not present an actual case or controversy. The Secretary nevertheless wishes to bring this issue to the Court's attention because the potential claims of these other parties, if permitted to intervene, will require a period for discovery and a trial, and therefore may substantially affect the timetable for final resolution of this case. Status conference. Should the Court have questions for the parties not addressed by the status reports, the parties are willing to appear for a status conference at the Court's convenience. Otherwise, the parties will await further direction from the Court. Respectfully submitted this 9th day of March, 2006.
JOHN W. SUTHERS Attorney General s/ Monica M. Marquez 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: 303-866-4765

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CERTIFICATE OF SERVICE I hereby certify that on March 9, 2006, I electronically filed the within STATUS REPORT OF THE COLORADO SECRETARY OF STATE 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 copy 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 ___________________________________

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