Remap headed to judges State high court will hear petition from AG to scuttle redistrict plan

May 16, 2003

The Denver Post

By Julia C. Martinez Denver Post Capitol Bureau

The Colorado Supreme Court agreed Thursday to hear a rare petition from the attorney general on whether the legislature had the authority to redraw congressional boundaries.

The ruling came a day after Attorney General Ken Salazar asked the state's highest court to decide whether it was constitutional for the legislature to pass a new redistricting plan, which it did on the final day of the legislative session last week.

Salazar contends that redistricting is to be done only once every 10 years after the federal census. A district judge imposed a plan last year.

Salazar's petition seeking to have a state law struck down by the Supreme Court is unprecedented in modern times, not only in  Colorado but perhaps in the nation, constitutional scholars said.

Normally, the attorney general is charged with defending state laws. In this case, he is suing to overturn one, citing his higher authority to preserve, protect and defend the constitutions of  Colorado and the United States .

'This is huge. It's never happened anywhere else in the United States,' said state Sen. Ken Gordon, an attorney and Denver Democrat, referring to the involvement of Colorado's Supreme Court in this type of redistricting battle and to the attorney general's unusual petition. 'On the other hand, no other group of politicians has had the audacity and the lack of shame to try to redistrict just because they can.'

GOP Rep. Shawn Mitchell of Broomfield said there are serious problems with the attorney general's suing his own clients as the state's chief legal adviser.

'He is trying to be a free agent and policy activist and decide when he'll represent his clients and when he'll sue them,' said Mitchell, a lawyer.

The redistricting plan was pushed by the Republican-controlled legislature and signed into law by Republican Gov. Bill Owens last Friday. The entire process took five days and virtually excluded public input.

The plan solidifies GOP domination in five of the state's seven congressional districts in time for next year's presidential election. National Republicans admit they want to ensure President Bush solid backing in Congress if he is re-elected. The new law pre-empts a redistricting plan decided by the district judge last year, which gave Republicans four safe seats, Democrats two and left one swing district.

'This is the first time in my memory that the state attorney general has gone in to fight against the state of Colorado ,' said  University of Denver adjunct professor David Lane , a civil rights and criminal defense attorney. 'It's so rare you would probably not find anyone who can recall another case.'

University of Colorado professor Richard Collins said the high court would not have bypassed the normal trial court and appellate court process if it did not believe there was a good reason to do so.

'There is a public interest in having a fast resolution,' said Collins, a constitutional expert. 'I think the attorney general helped the process by taking it directly     to the Supreme Court, rather than have it go through the trial court.'

The Democrats have challenged the new redistricting law in state district court, a process expected to take years and include a full-blown trial. A ruling by the Supreme Court would expedite the process in time for next year's elections.

The decision by the court to take the case was made as a group with all seven justices present, said court administration spokeswoman Karen Salaz. It takes four justices to decide to hear such a rare case, she said. Salaz said the court did not disclose how many more justices, beyond the four, might have voted for or against hearing the petition.

In its 15-line ruling, the court gave Secretary of State Donetta Davidson 30 days to answer in writing why the attorney general's petition should not be granted. It gave Salazar another 30 days  from receipt of Davidson's response to reply. The ruling also invited Owens, the state legislature and other interested parties to file briefs within the time allowed.

Davidson announced Thursday she has retained attorney Richard Kaufman to represent her office. She added: 'It seems to be a conflict of interest for the attorney general to sue the secretary  of state.'

She asked Salazar to withdraw the suit.

Senate Majority Leader Norma Anderson, R-Lakewood, said legislative leaders would discuss the case next week and decide how to proceed.  Owens spokesman Dan Hopkins said the governor also will make a decision next week on his strategy.

Lawyers said the arguments before the court will likely include whether Salazar has the right to sue the state.

'I'm sure the issue will be argued in court about Salazar's capacity to act for the state and sue the state at the same time,' said Mitchell.

But Lane said it is also Salazar's duty to uphold the Colorado Constitution.

"I admire Salazar for understanding the broader concept of his job, and that is defending the constitution," Lane said. "When he believes a statute violates the constitution, he attacks it, and  that's what he should be doing."