The Colorado Supreme Court held oral arguments yesterday (Thursday, 1 December) on a challenge to Denver District Court Judge Robert Hyatt’s ruling in the Colorado Congressional redistricting trial.  The appeal, led by Douglas County and joined by the Republican petitioners (one from each of the state’s seven congressional districts) in the original case, was held in the Old Supreme Court Chambers of the Colorado Capitol, 200 E. Colfax Avenue, Denver 80203

Thursday’s oral arguments before the Colorado Supreme Court, in which each side had 30 minutes to make their case, were recorded and posted online shortly after the hearing.

Unlike the challenges to the state legislative district maps (which resulted in the maps being rejected by the Colorado Supreme Court and remanded back to the Colorado Reapportionment Commission), which revolved around clear and straightforward constitutional criteria, the arguments in the Congressional Redistricting case dealt with much more esoteric issues of case precedent & standards of legal review, making a prediction of the outcome much less certain.

(New Democrat redistricting map – statewide)

Opponents (challenging the “Moreno Map” approved by Judge Hyatt) went first.

Attorney Richard Westfall (representing the Hall plaintiffs – the Republican parties to the original case) opened by stating “the crux of this appeal is whether the trial court is free to disregard decades of precedent in amending congressional districts this cycle.”  He outlined the basis for the appeal on two main points:

1. It was ‘manifestly unreasonable’ for the trial court to ignore existing ‘communities of interest’ regarding Douglas and Larimer counties
2. When a court draws congressional districts, there are judicial standards that should be followed – and when they are not, a ‘de novo review’ of the record is required

Westfall then addressed the disparate application of “agricultural communities of interest” in the case of Douglas and Larimer counties – held by the trial court to be paramount in tying Douglas, yet negligible in linking Larimer, to the Eastern Plains congressional district, CD4 (long established in case law as the “Eastern agricultural” district for the state).  He highlighted Larimer’s status as an agricultural production center (the 10th largest in the state, with $128M in agricultural production, contrasted with Douglas County’s mere $16M) and close ties with ‘similar’ neighboring Weld County as strong evidence for Larimer’s continuing “community of interest” with CD4.  Westfall also raised the “absolute inconsistency in application” of the standard of oil & gas exploration as a “community of interest” binding Douglas County (with “zero” oil & gas permits issued in 2010) to CD4 while ignoring existing oil & gas exploration efforts in Larimer County.

Questions put to Westfall by the Colorado Supreme Court justices raised the issue of competing ‘communities of interest’ (Chief Justice Bender asked,”why is it so unreasonable that beetlekill, and the universities” don’t establish a “community of interest” between Boulder and Larimer counties?)

Other questions addressed the ‘standard of review’ for the Colorado Supreme Court to apply in reviewing the lower court’s ruling (Justice Monica Marquez asked regarding standards of review, “was the trial court decision supported by the record?” and raised the issue of how to apply judicial standards vs. statutory standards, and discretion in applying standards).

Attorney Kelly Dunnaway, representing the Douglas County plaintiffs, added more information about the “communities of interest” applying to Douglas County – as perceived by the county government and majority of county residents.  He highlighted the fact that transportation, jobs, water compacts, membership in regional government organizations (including RTD, the stadium district and DRCOG, the Denver Regional Council of Governments) and tax-sharing agreements all tied Douglas County to the Denver metro suburban area and NOT to the Eastern Plains.  He pointed out the “manifestly arbitrary” nature of the trial court’s selection of evidence to put Douglas County in CD4 – noting that the trial court “invented communities of interest that don’t really exist in order to support the order.”

Questions to Dunnaway also addressed the issues of standards of review and findings of fact in the trial court’s order.  Justice Rice asked if the standard of review is to “look for absence of information in the court order;” Chief Justice Bender asked if there was “insufficient data to support findings of fact” in the trial court ruling (Dunnaway: “absolutely”) or if there was “sufficient evidence to support the conclusion” reached by the trial court (Dunnaway: it was arbitrary to not consider Douglas County’s evidence and testimony, “ignoring wishes of residents in both [Douglas and Larimer] counties”).  Justice Marquez noted that “we need to look at this map as a whole… there are always competing interests” (Dunnaway: the standard is whether the decision was “manifestly unreasonable” – noting that not only were Douglas and Larimer counties impacted but “1.4 Million people in Colorado were reassigned to different congressional districts under the ‘Moreno Map’ – over a third of Colorado residents, without ‘compelling reason,’ concluding that it is “manifestly unreasonable to disenfranchise 1.4 Million people”).

Proponents for the ‘Moreno Map’ were represented by Democrat Party attorney Mark Grueskin (astute observers of Clear The Bench Colorado (or of Colorado politics in general) may recall Mark Grueskin from his role in establishing a shadowy and well-funded special-interest group to counter the Clear The Bench Colorado judicial accountability efforts during the 2010 judicial retention vote).

Grueskin opened by noting that the Colorado General Assembly had failed to pass congressional redistricting legislation 4 times in the past 30 years – resulting in 3 judicial redistricting decisions.  He asserted that the Moreno Map created “appropriate districts to ensure fair representation.”

Grueskin’s opening statement drew an immediate question from Justice Marquez – noting that “part of this notion of effective representation hinges in some part on stability of districts, in part to establish that identity over time.”  Each congressional district “conjures in my mind a certain image…”

Is it really appropriate every 10 years to just completely wipe the slate clean? How does your map honor minimizing disruption of districts?

Grueskin responded that although it’s appropriate to “recognize stability”… it doesn’t trump other criteria.  He asserted that issues and “communities of interest” do change, and that the judicial process is an appropriate venue for assessing what is “put into evidence” in order to establish congressional districts, and argued that it is “counterintuitive… that districts are set in stone.”

Chief Justice Bender then asked Grueskin to address the main points of the opponents’ argument (1. disagreement on standard of review, and 2. taking Douglas and Larimer counties out of current districts was ‘unfair’) – “what are the facts supporting [Hyatt's] decision?”

Grueskin argued that “evidence linking Boulder and Larimer counties is strong” – citing “expert testimony” that the demographics of Boulder and Larimer counties are “virtually identical” while the demographics of Larimer and the Eastern Plains are “exceedingly different.”  He noted many common employment industries in both counties, while noting that the percentage of residents actually employed in agriculture in Larimer is not large.

Grueskin noted that the “standard of review” issue is important, while maintaining that the issue of what is open to ‘de novo review’ is very limited.

Finally, the attorney for Aurora expressed support for the ‘Moreno Map’ in keeping Aurora wholly within a single congressional district, citing previous case law supporting keeping the city intact as a “community of interest” that had previously been trumped by other factors.  He did note, however, the close ties of Aurora to Douglas and Elbert counties as a provider of water resources (which one might think would be an argument for maintaining Aurora in a “community of interest” with those counties).

Interestingly, neither side brought up the disputed notion of “competitiveness” as a basis for defining congressional district boundaries, cited by Judge Hyatt in support of his decision to split some counties (Douglas, Adams, Arapahoe, and Eagle) and not others. (Ruling at 43)

Bottom Line:

The Colorado Supreme Court’s decision in the appeal of the trial court’s congressional redistricting ruling is likely to come down to the ‘standards of review’ issue: was the trial court “manifestly unreasonable” in defining districts and did it “inconsistently apply” standards for ‘communities of interest’ in assigning counties to congressional districts?

The extent of judicial discretion exercised by Denver District Court Judge Robert Hyatt (in selecting evidence and applying statutory criteria) is also likely to factor in the court’s ruling.  Thanks to the “Mary-Mandering” bill passed in the waning days of the 2010 legislative session, the judge could pick & choose criteria including “non-neutral” political factors according to his personal preference.

The General Assembly amended this statute in 2010 to repeal the statutory prohibition, adopted in 2004, against the use of political data such as party registration and so-called “political performance” data. (Ruling at 43)

Quo Vadis?

Although “reading the tea leaves” in such a complex and highly political case is fraught with danger, based on the arguments presented, questions posed by the Colorado Supreme Court justices, and in light of relevant case law precedent and Colorado statutory requirements (see below), Clear The Bench Colorado can discern some indicators on the eventual outcome:

• Justices Bender and Rice (the remaining members of the “Mullarkey Majority”) will almost certainly vote to uphold the Moreno map (based on past ‘performance’ and questions asked)
• Justices Eid and Boatright (the Colorado Supreme Court’s newest member) appeared skeptical that the trial court consistently applied standards and considered existing “communities of interest” and relevant case law; they appear disposed to reject the map
• Justice Coats asked no questions during oral argument; he trends “conservative” and dissented in the judicial usurpation of legislative redistricting authority in the 2003 redistricting case (Salazar v. Davidson), and tends to support case law precedent (which would support maintaining traditional “communities of interest” & minimizing disruption).  Leans reject.
• Justice Hobbs appeared to accept proponents’ arguments that competing “communities of interest” had been considered by the trial court, and that on balance the evidence was sufficient to support Hyatt’s ruling; leans uphold.
• Justice Marquez asked the most incisive and relevant questions at oral argument.  Although it’s not clear how she might eventually decide, it is clear that she is possessed of a sharp legal mind and appears disposed to rule on the merits of the evidence and legal criteria applicable to the case.
• CTBC predicts that the Colorado Supreme Court will almost certainly issue a split decision, most probably ending on a 4-3 vote (with Justice Marquez the most likely deciding vote). Based on available evidence, it’s impossible to predict which way it will go – but given the urgency of reaching a decision, we’ll see a ruling from the court next week.

Congressional District Google Earth maps (requires Google Earth download): Moreno/South Map (Google Earth)

Statutory Criteria governing Congressional Redistricting:

2-1-102. Neutral criteria for judicial determinations of congressional districts.
(1) In determining whether one or more of the congressional districts established in section 2-1-101 are lawful and in adopting or enforcing any change to any such district, courts:

(a) Shall utilize the following factors:

(I) A good faith effort to achieve precise mathematical population equality between districts, justifying each variance, no matter how small, as required by the constitution of the United States. Each district shall consist of contiguous whole general election precincts. Districts shall not overlap.
(II) Compliance with the federal “Voting Rights Act of 1965″, in particular 42 U.S.C. sec. 1973; and

(b) May, without weight to any factor, utilize factors including but not limited to:

(I) The preservation of political subdivisions such as counties, cities, and towns. When county, city, or town boundaries are changed, adjustments, if any, in districts shall be as prescribed by law.
(II) The preservation of communities of interest, including ethnic, cultural, economic, trade area, geographic, and demographic factors;
(III) The compactness of each congressional district; and
(IV) The minimization of disruption of prior district lines.

Additional references:

• Constitutional Provisions Controlling Reapportionment/Redistricting (state website listing relevant legal language on Congressional redistricting & state legislative reapportionment)
• Redistricting in Colorado (Ballotpedia site – although the site contains several errors, some of which are being corrected, it does provide useful context and historical background on past restricting battles.  As with any Wiki site – contributions come from a variety of sources and are frequently edited – proceed with some skepticism)

The Colorado Supreme Court holds oral arguments today (Thursday, 1 December) on a challenge to Denver District Court Judge Robert Hyatt’s ruling on Colorado Congressional redistricting.  The appeal, led by Douglas County and joined by the Republican petitioners (one from each of the state’s seven congressional districts) in the original case, is proceeding on an accelerated schedule starting at 11:15 AM in the Old Supreme Court Chambers of the Colorado Capitol, 200 E. Colfax Avenue, Second Floor, Denver 80203

Today’s oral arguments before the Colorado Supreme Court, in which each side will have 30 minutes to make their case, will be recorded and posted online shortly after the hearing.

Arguments in the case are likely to revolve around the issue of whether the lower court properly adhered to Colorado constitutional and statutory guidelines governing redistricting, in particular the requirement to maintain county integrity where possible

Except when necessary to meet the equal population requirements of section 46, no part of one county shall be added to all or part of another county in forming districts. Article V, Section 47(2)

and “preservation of political subdivisions such as counties, cities, and towns.” [C.R.S. 2-1-102(1)(b)]

Douglas County is also challenging Judge Hyatt’s assertion that Douglas County is more properly within a “community of interest” with the Eastern Plains (putting Castle Rock and Park Meadows shopping mall in the same district as Wray, Burlington, and Lamar).  [Ed. an observer wryly noted that Douglas County doesn't even have a Burlington Coat Factory location, much less strong 'agricultural' ties to the plains]

Finally, petitioners are likely to challenge the notion of “competitiveness” as a basis for defining congressional district boundaries, cited by Judge Hyatt in support of his decision to split some counties (Douglas, Adams, Arapahoe, and Eagle) and not others. (Ruling at 43)

It must be noted that ”competitiveness” is a political argument, NOT a legal or constitutional argument (since there is neither a clear definition, nor constitutional requirement, for “competitiveness”), and as such has no place in a court ruling on the constitutional or legal merits of the maps.

Given the Colorado Supreme Court’s rejection of “competitiveness” as a factor taking precedent over clear constitutional and statutory guidelines in remanding state legislative district maps back to the Colorado Reapportionment Commission for corrections and revisions, it would be utterly inconsistent of the court to reject “competitiveness” as a primary factor in state legislative redistricting while upholding the notion for Colorado’s Congressional districts.

Sadly, the entire spectacle of judicial imposition of a political solution to Colorado’s Congressional District representation could have been prevented had the state legislature carried out their constitutionally-mandated responsibility to pass redistricting legislation instead of sending it to the courts last Spring.

Congressional District Google Earth maps (requires Google Earth download): Moreno/South Map (Google Earth)

Additional references:

• Constitutional Provisions Controlling Reapportionment/Redistricting (official Colorado state website, which collates relevant constitutional language on Congressional redistricting and state legislative reapportionment)
• Redistricting in Colorado (Ballotpedia site – although the site contains several errors, some of which are being corrected, it does provide useful context and historical background on past restricting battles.  As with any Wiki site – contributions come from a variety of sources and are frequently edited – proceed with some skepticism)

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone –  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though – it’s worth the effort.

The Colorado Supreme Court granted certioriari Thursday, 17 November (agreed to hear the appeal) on a challenge to Denver District Court Judge Robert Hyatt’s ruling on Colorado Congressional redistricting.  The appeal, led by Douglas County and joined by the Republican petitioners (one from each of the state’s seven congressional districts) in the original case, is proceeding on an accelerated schedule culminating in oral arguments (open to the public) on 1 December starting at 11:15 AM in the Old Supreme Court Chambers of the Colorado Capitol, 200 E. Colfax Avenue, Second Floor, Denver 80203)

Opening briefs from the petitioners (appellants) are due to the Colorado Supreme Court on Wednesday, 23 November; response briefs are due to the court on Monday, 28 November (so much for a happy Thanksgiving weekend for the lawyers).

Next Thursday’s (1 December) oral arguments before the Colorado Supreme Court, in which each side will have 30 minutes to make their case, will be recorded and posted online shortly after the hearing.

Arguments in the case are likely to revolve around the issue of whether the lower court properly adhered to Colorado constitutional and statutory guidelines governing redistricting, in particular the requirement to maintain county integrity where possible

Except when necessary to meet the equal population requirements of section 46, no part of one county shall be added to all or part of another county in forming districts. Article V, Section 47(2)

and “preservation of political subdivisions such as counties, cities, and towns.” [C.R.S. 2-1-102(1)(b)]

Douglas County is also challenging Judge Hyatt’s assertion that Douglas County is more properly within a “community of interest” with the Eastern Plains (putting Castle Rock and Park Meadows shopping mall in the same district as Wray, Burlington, and Lamar).  [Ed. an observer wryly noted that Douglas County doesn't even have a Burlington Coat Factory location, much less strong 'agricultural' ties to the plains]

Finally, petitioners are likely to challenge the notion of “competitiveness” as a basis for defining congressional district boundaries, cited by Judge Hyatt in support of his decision to split some counties (Douglas, Adams, Arapahoe, and Eagle) and not others. (Ruling at 43)

It must be noted that ”competitiveness” is a political argument, NOT a legal or constitutional argument (since there is neither a clear definition, nor constitutional requirement, for “competitiveness”), and as such has no place in a court ruling on the constitutional or legal merits of the maps.

Given the Colorado Supreme Court’s rejection of “competitiveness” as a factor taking precedent over clear constitutional and statutory guidelines in remanding state legislative district maps back to the Colorado Reapportionment Commission for corrections and revisions, it would be utterly inconsistent of the court to reject “competitiveness” as a primary factor in state legislative redistricting while upholding the notion for Colorado’s Congressional districts.

Sadly, the entire spectacle of judicial imposition of a political solution to Colorado’s Congressional District representation could have been prevented had the state legislature carried out their constitutionally-mandated responsibility to pass redistricting legislation instead of sending it to the courts last Spring.

Congressional District Google Earth maps (requires Google Earth download): Moreno/South Map (Google Earth)

Additional references:

• Constitutional Provisions Controlling Reapportionment/Redistricting (official Colorado state website, which collates relevant constitutional language on Congressional redistricting and state legislative reapportionment)
• Redistricting in Colorado (Ballotpedia site – although the site contains several errors, some of which are being corrected, it does provide useful context and historical background on past restricting battles.  As with any Wiki site – contributions come from a variety of sources and are frequently edited – proceed with some skepticism)

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone –  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though – it’s worth the effort.