View From a Height
Commentary from the Mile High City
Tuesday, May 20, 2003

This afternoon, the Legislative Council of the Colorado Legislature voted to retain counsel for their defense of the new redistricting plan. How this could be otherwise, I have no idea. Nevertheless, the vote was party-line, 4-2.

"This certainly adds insult to injury. I just find it hard to believe that we're asking taxpayers to foot the bill for what was a partisan division in the General Assembly," Senate Minority Leader Joan Fitz-Gerald, D-Golden said.

She's objecting to hiring a Republican lawyer to represent a Republican-controlled legislature to defend a redistricting plan favorable to Republicans against a lawsuit by a Democratic legislator, and another by a Democratic state Attorney General. I can see where she'd be unhappy, but this kind of comment suggests that Ms. Fitz-Gerald had just come from mingling with the constituents on one of those hometown brewery tours.

There are two cases pending here. First, a number of legislative Democrats, unhappy at suddenly having smaller offices with views of the NEA building rather than the mountains, have filed suit against the Secretary of State and the General Assembly. Their claim is, basically, that the Republicans cheated in order to pass an unconstitutional bill. Unless the cheating involved binding and gagging every Democrats on the Hill, nothing was stopping them from shouting "Point of Order," at the time. There certainly is a princple that bodies have to obey their own rules. When agencies mess this up, there are administrative courts. When courts get it wrong, there are appeals courts. To the best of my knowledge, there is no Court of Parliamentary Procedure outside the legislative body itself, and the Body Itself is responsible for getting this stuff right at the time.

Legislators go to court, on rare occasion, to challenge the constitutionality of acts they voted against. Mitch McConnell is a plaintiff in a case challenging the gag rule known as McCain-Feingold. They may not get the use of public funds to do it, though, because they were already representing the public when they voted and lost. In this case, the General Assembly finds itself being sued, it certiainly ought to be able to find money in the budget to show up in court.

The legislature finds itself in the almost unprecedented position of having to defend its own decisions in court. Now, normally, the Attorney General does this for the state. But in this case, the Attorney General has a case of his own, asking the Supreme Court to overturn a law of the State he represents. To the best of my knowledge, he's not doing this on his own time, or paying for someone to represent him out of his own pocket. In fact, it's hard to see exactly who the Attorney General is representing. It's not the legislature, which passed the law he opposes. It's not the executive, since the Governor singed the bill himself. It's not the judge who imposed the current plan. It looks to me as though the Attorney General is representing the Democratic representatives in a previous session of the Colorado legislature. So if he gets state money to file a suit defending the rights of people who aren't even serving anymore, why on earth should the sitting legislature not get the benefit of counsel?

It would be foolish to deny the partisan aspect of this case. But that argues in favor of having a Republican attorney. After all, we've seen what Democrats behave like when they get anywhere near this case.

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